Montana State Bar of Montana December/January 2014/2015 Lawyer Vol. 40, No. 3

By Trent Hooper and Bobbi Owen Page 10

Also in this edition: > Edward Snowden: Hero or Traitor? Creighton University Law Professor G. > Elder Care Section offers tips for a quality Michael Fenner takes an in-depth look holiday season for elders and those with > Guest opinion by former Montana Supreme special needs Court Justice James C. Nelson > Fastcase free webinars for 2015 > Reception in Billings will honor new > President’s Message to new legislators Ninth Circuit Chief Judge Sidney Thomas Montana Lawyer 1

The official magazine of the State Bar of Montana published every month except January and July by the State Bar of Montana, 7 W. Sixth Ave., Suite 2B, P.O. Box 577, Helena MT 59624. (406) 442-7660; Fax (406) 442-7763. INDEX E-mail: [email protected] State Bar Officers January 2014 President Mark D. Parker, Billings President-Elect Matthew Thiel, Missoula Feature Stories Secretary-Treasurer Tips on Having Enjoyable Holiday Season with Elders...... 8 Bruce M. Spencer, Helena Immediate Past President Wisely Choosing a Defensible Business Name...... 10 Randall Snyder, Bigfork Edward Snowden: Hero or Traitor?...... 14 Chair of the Board Leslie Halligan, Missoula Fastcase Free Webinars in 2015...... 21 Board of Trustees Attorney Match Mentorship Service...... 26 Marybeth Sampsel, Kalispell Elizabeth Brennan, Missoula Leslie Shoquist, Missoula Guest Opinion: Citizens United Decision...... 28 Tammy Wyatt-Shaw, Missoula Ellen Donohue, Anaconda Jason Holden, Great Falls Shari Gianarelli, Conrad Regular Features Kent Sipe, Roundup Luke Berger, Helena Member News...... 5 Kate Ellis, Helena J. Stuart Segrest, Helena Court orders...... 7 Jane Mersen, Bozeman Lynda White, Bozeman State Bar News...... 24 Juli Pierce, Billings Ross McLinden, Billings CLE...... 24 Monique Voigt, Billings Job Postings/Classifieds...... 29-31

ABA Delegates Damon L. Gannett, Billings Shane Vannatta, Missoula

Montana Lawyer Staff Publisher | Christopher L. Manos Editor | Joe Menden From the cover (406) 447-2200; fax: 442-7763 e-mail: [email protected] Common mistakes made by business owners when naming their business can cost them legal trouble and money. Authors Trent Subscriptions are a benefit of State Bar Hooper from Crowley Fleck in Billings and student Bobbi Owen membership. give attorneys tips for arming their clients for trademark Advertising rates are available upon skirmishes — or avoiding them altogether. request. Statements and expressions of opinion appearing herein are those of the advertisers or authors and do not neces- sarily reflect the views of the State Bar of Montana.

Postmaster: Send address changes to Montana Lawyer, P.O. Box 577, Helena MT 59624.

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www.montanabar.org Page 3 President’s Message | President Mark D. Parker A letter from Bar president to Montana’s 150 legislators

Well, this year’s over, or close to it. We combine the “L” class. Political commentators, media personalities, and some December-January issue of the Montana Lawyer, so the next snotty citizens who should know better, will roll cheap general- time you hear from me you will have made it through, hap- izations and insults off their lips about you with not a whit of pily I hope, the holiday season. This year I am hoping that the concern that there will be any backlash. No one will stand up and dour commentators who drone on about “Christmas being castigate unfair, dishonest and downright mean generalizations, too commercial” (ironically a paid gig for most of them) keep stereotypes and, dare I say, bigotry about Legislators. You can their mouths shut. Who cares, really? Let everyone celebrate say “All politicians are crooks” in this country without a bit of Christmas or their holiday of choice as they please, without protest. For many of you, this will be the first time you have been background noise. in such a position. It’s not fun, it’s not fair, and I have decided My present to the State Bar of Montana will be relief from that I am going to speak up for you when I get a chance. Probably having to read a “Christmas Letter” about me and my family’s won’t work but I will try. diseases, successes, travels, awards, etc. But, don’t rejoice too As a lawyer, I am numb to it. Lawyer jokes are treated as much yet. I do have a letter you can read on some cold wintry fair game even among those who claim to champion all causes of night. It’s my letter to 150 Montana legislators. equality and fairness. You can say “Lawyers are crooks” with less public angst than uttering the tautology “All crooks are crooks.” Dear Montana Legislators, Lobbyists also catch it in the chops, and unfairly so. The State Bar of Montana has two Lobbyists, Ed Bartlett and On behalf of the State Bar of Montana, I thank each of you Bruce Spencer. Call on them at any time for anything. We hire for serving in our legislature. You have made the sacrifices, and them on a flat fee. Bruce and Ed represent a few thousand law- deserve the thanks. Door to door dodging dogs, and dog drop- yers, who in turn represent a few hundred thousand Montanans. pings. Getting home after the kids are in bed, and being out the The State Bar will probably have no opinion on most matters. door before they get up. Asking your employees; employers; fam- But, if you want to know whether a bill will increase or decrease ily; friends and complete strangers to make sacrifices so you can the legal, governmental, regulatory or other burdens on a citizen, serve them. Whether you are a farmer, teacher, rancher, business Bruce or Ed will know, or find someone who does know. owner or fry chef, now you will decide everything from the “state The State Bar will speak up on a few matters. We will vocal- fossil” to methods of execution. The line of people wanting money ize our support for the judiciary. The State Bar has resolved to will wend around the nose of the Sleeping Giant. The line of support the Office of Public Defender in its effort to discharge its people wanting to pay more taxes will fit in the phone booth. constitutional charge to defend indigents. Lastly, we will try to People will scream in your ear “The government must do be of some help to our mutual goal of making family law more something about this!” and “We need to get government out of accessible, and less cumbersome, to our citizenry. If we don’t do our lives!” in the same rant and never see a speck of inconsis- these things, no one else will. tency, and bristle when you point it out. Again, thanks for making the sacrifice. Have fun. Take care of There is an unfortunate and, regrettably, unavoidable conse- yourself. The session is tough work, and we appreciate the effort. quence of your sacrifice and success. As a Legislator (much like Lawyers and Lobbyists) you are now an unprotected class – The Mark D. Parker

There is an unfortunate and, regrettably, unavoidable consequence of your sacrifice and success. As a Legislator (much like Lawyers and Lobbyists) you are now “ part of an unprotected class — the ‘L’ class. Page 4 December-January” 2014-2015 Member and Montana News Nowels joins Garlington, Lohn & Robinson millions of dollars of revenue and managed disputes with other commercial entities. Robert Nowels recently joined Garlington, Lohn & Haus’ practice will focus on the general practice of law with Robinson PLLP in the firm’s commercial and real an emphasis on business litigation, transactional and business law estate practice. matters, civil litigation, employment law and criminal law. He Nowels earned his Bachelor of Arts degree passed the Montana State Bar Exam in 2013 and is a member of in business management from the University of the Federal District Court of Montana, the State Bars of Montana Utah and his J.D. from the University of Montana and Minnesota, and the Gallatin County Bar Association. School of Law. Prior to law school he worked in When not working, Haus enjoys hiking, backpacking, ca- Nowels hotel management at Snowbird Ski Resort. noeing, fishing, cycling, downhill skiing and Nordic skiing. Nowels can be reached at rlnowels@garlington. He can be contacted at [email protected] or com, or at 406-523-2500. Garlington, Lohn & Robinson is on 406-586-2228. the Web at www.garlington.com. Crowley Fleck welcomes new associates O’Brien joins St. Peter Law Offices Crowley Fleck PLLP welcomes the following new associates: St. Peter Law Offices, P.C., located in Missoula, announces = David C. Clukey graduated cum laude in 2014 from that Michael O’Brien has joined the firm as an associate Gonzaga University School of Law. He received a Bachelor of attorney. Science in communication with an emphasis in public relations O’Brien earned his Juris Doctorate from the from Brigham Young University in 2011. At BYU, he was a co- University of Montana School of Law in 2013 and coordinator, assistant coach and player in the school’s intra- received degrees in political science and public mural lacrosse league. Clukey will practice in the Billings office administration from Carroll College in 2002. He focusing on commercial litigation, construction law, environ- served the Hon. Robert G. Olson as a law clerk in mental law, intellectual property and health care law. He can be Glacier, Toole, Pondera, and Teton Counties in reached at 406-252-3441 or [email protected]. O’Brien Montana from 2013-2014. In the summer of 2014, = Molly S. Considine graduated magna cum laude from he returned home to Missoula to join St. Peter Law Hamline University School of Law in St. Paul, Minnesota, Offices, P.C. in 2014. While in law school, Molly served as a Notes and O’Brien’s practice includes all facets of litigation, including Comments Editor for Hamline Law Review and captain of Phi contract disputes, estate proceedings and construction litiga- Alpha Delta’s 2014 mock trial team. She received a Bachelor of tion. Previously he oversaw the Business Services Division in the Science in business management in 2009 from the University Montana Secretary of State’s Office and has expertise in small of Montana and graduated with honors. She will practice in the business legal issues, including corporate, limited-liability com- Billings office, focusing on estate planning, estate and gift tax, pany, and business-entity formation, UCC filings and business and estate and trust administration. Molly can be reached at regulation. O’Brien is admitted to practice before the Montana 406-252-3441 or [email protected]. Supreme Court, the United States District Court for the State of = James M. Duncan graduated with distinction from the Montana, and the Blackfeet Tribal Court. He can be contacted at University of Iowa College of Law in 2014. While in law school, 406-728-8282; or [email protected]. he interned with the Iowa City Attorney’s Office and competed in several moot court competitions. He earned his undergradu- Bozeman firm welcomes Haus ate degree in music performance at Brigham Young University, where he sang many lead tenor roles in BYU Opera produc- Guza, Nesbitt & Putzier, PLLC, a full-service litigation, fam- tions. He will practice in the Billings Commercial Litigation ily law and transactional law firm is pleased to announce the Department. He can be reached at 406-252-3441 or jduncan@ addition of Matthew A. Haus as an associate attorney. crowleyfleck.com. Haus graduated from the University of California – San = Justin D. Hoskins graduated in 2014 from the University Diego with a B.A. in U.S. history and psychology in 2008. He of Montana School of Law. He graduated magna cum laude in attended law school at the University of Minnesota. 2009 from Montana State University with a Bachelor of Science While in law school, he served as the teaching di- in business administration in accountancy. He is also a CPA, rector for the University of Minnesota’s Civil Rights but presently maintains his certificate in a non-practice status. Moot Court and as a certified student prosecutor Hoskins will practice in the Billings office focusing on tax, for the city of St. Louis Park, Minnesota, where he trusts, estates and wealth planning. He can be reached at 406- prosecuted individuals charged with misdemeanor 252-3441 or [email protected]. Haus and gross misdemeanor crimes. = Gage H. Zobell graduated magna cum laude, Order of After graduating magna cum laude from the the Coif, in April 2014 from the J. Reuben Clark Law School at University of Minnesota Law School and passing the Minnesota Brigham Young University. He earned a Bachelor of Science in State Bar Exam in 2012, Haus worked for Pearson VUE’s legal economics, magna cum laude, from Brigham Young University department, negotiating commercial contracts impacting Member News, page 6 www.montanabar.org Page 5 Member and Montana News in 2011. While in law school, he served as the president of He received a Bachelor of Arts degree in history from Montana Council of Advocates (moot court) and competed nationally for State University Billings in 2009. He clerked for the Hon. the law school. Zobell will practice in the Billings office focus- District Court Judge Joel Medd and completed an externship ing on energy and natural resource law, including mining, oil with the United States Attorney’s Office. After graduation, and gas, Indian law, title examination, water rights, and farm Nicholson completed a one-year clerkship with the Hon. Chief and ranch law. He can be reached at 406-252-3441 or gzobell@ Justice Gerald VandeWalle of the North Dakota Supreme crowleyfleck.com. Court. Nicholson will practice in the Bismarck, North Dakota = Shalise C. Zobell graduated magna cum laude from the J. Commercial and Litigation Departments. He can be reached at Reuben Clark Law School at Brigham Young University in 2014. 701-223-6585 or [email protected]. She received a Bachelor of Science in mathematics, with a minor = Alexander T. Tsomaya graduated with honors from the in political science from Brigham Young University in 2011. She University of Montana School of Law in 2014. He attended interned with the state of Washington Attorney General’s Office Northland College in Ashland, Wisconsin, where he was a in 2012, the Harris County District Attorney’s Office in Houston member of the baseball team for four years and received a in 2013, and was editor-in-chief of BYU’s Journal of Public Law Bachelor of Science in business administration in 2011. While from 2013-2014. She will practice in the Billings office focusing in law school, Tsomaya interned for the Office of the Federal on a variety of areas of civil litigation. She can be reached at 406- Defender and clerked for a Missoula-based litigation firm. 252-3441 or [email protected]. He will practice in the Bismarck, North Dakota, Litigation = Mark R. Feddes graduated magna cum laude from Department. He can be reached at 701-223-6585 or atsomaya@ Pepperdine University School of Law in 2014. He graduated crowleyfleck.com. summa cum laude in 2010 from Whitworth University receiving = Nicholas T. Haderlie received his Juris Doctorate with a Bachelor of Science in political science. He also participated in honors from the University of Wyoming College of Law in Whitworth’s Political Activism Club. Feddes will practice in the 2011. He also received a Master of Arts in environmental and Bozeman Litigation Department. He can be reached at 406-446- natural resources from the University of Wyoming Haub School 1430 or [email protected]. & Ruckelshaus Institute. With a strong background in environ- = Carina L. Wilmot graduated with high honors in 2014 ment and natural resources, he brings a unique perspective on from the University of Montana School of Law. She received possibilities for conflict resolution between energy resources. a Master’s in Intercultural Communication in 1997 from the Haderlie will practice in the Sheridan, Wyoming, focusing on University of New Mexico and a Bachelor of Science in social energy, environment and natural resources throughout the sciences from the University of Wyoming in 1995. While in law Rocky Mountain region. Nick can be reached at 307-673-3000 school, she was intake editor of the Montana Law Review and or [email protected]. interned with the Hon. Donald W. Molloy. Wilmot will practice = Trevor A. Hunter graduated in 2014 from Southwestern in the Helena Litigation and Commercial Departments. She can Law School in Los Angeles. He received a Bachelor of Arts in be reached at 406-449-4165 or [email protected]. both history and political science from the Davidson Honors = Kayleigh Brown received her Juris Doctorate, magna College at the University of Montana with University Scholar cum laude, from the University of Minnesota Law School in distinction. During his final year he served as president of the 2013. She graduated summa cum laude and Phi Beta Kappa Associated Students of the University of Montana (ASUM) and with a degree in government from Georgetown University in as president of the Montana Associated Students, a statewide or- 2010. Before joining the firm, Brown clerked for the Hon. Brian ganization. Hunter will practice in the Williston, North Dakota Morris at both the United States District Court for the District Commercial and Litigation Departments. He can be reached at of Montana in Great Falls and the Montana Supreme Court. 701-572-2200 or [email protected]. Brown will practice in the Helena Litigation Department and fo- cus her practice on employment litigation, health care litigation, Watson featured in Top Women in Energy report and medical malpractice. She can be reached at 406-449-4165 or [email protected] Rebecca W. Watson is featured in a special report, Who’s = Christopher K. LeCates graduated magna cum laude Who in Energy 2014, in the Nov. 28 issue of the Denver from the University of North Dakota School of Law in 2013. Business Journal. He received a Bachelor of Science in economics in 2009 from Watson was also selected to the publication’s 2014 inaugural Utah State University. While in law school, he interned at the class of “Top Women in Energy” through nominations sub- U.S. District Court and clerked at Serkland Law Firm, both in mitted to the Denver Business Journal and Women in Energy Fargo, North Dakota. After law school, he served as law clerk – Denver. Watson was selected to receive this honor in recog- to the Hon. Justice Dale V. Sandstrom of the North Dakota nition of her commitment to professional excellence and her Supreme Court. LeCates will practice in the Bismarck Energy contribution to the energy industry in Colorado. She, along with Department. He can be reached at 701-223-6585 or clecates@ 40 others, was honored in a supplemental section to the Denver crowleyfleck.com. Business Journal published on Oct. 31. = Aaron W. Nicolson graduated magna cum laude from Watson is a shareholder at Welborn, Sullivan, Meck & the University of North Dakota School of Law in May 2013. Tooley in Denver and is a member of the State Bar of Montana.

Page 6 December-January 2014-2015 Member and Montana News Biehl joins Church, Harris, Johnson & Williams property law, and spent two semesters in London, England studying international law. He interned at a boutique solicitor The law firm of Church, Harris, Johnson & Williams, P.C. firm and in the business and legal affairs department of one of has announced that Eric B. Biehl has joined the firm as an as- the United Kingdom’s largest production companies. He also in- sociate attorney. terned in Great Falls on civil litigation cases while a law student. Eric is a member of the firm’s litigation team Prior to joining the firm, Eric practiced locally, providing and advocates for clients in disputed matters both litigation services and focusing on personal injury claims. Eric is in and out of the courts. admitted to practice law in California, Montana, North Dakota, Eric is a fifth-generation Montanan and grew Washington, D.C., and before U.S. District Courts, District of up in Red Lodge and Great Falls. He received a B.A. Central California and District of Montana. Eric is a member in Film and Television Production from Montana of the bar in those jurisdictions, the American Bar Association, Biehl State University in 2006 and received his law degree Cascade County Bar Association and the Montana Trial Lawyers from Pepperdine University School of Law in 2010. Association. In his free time Eric enjoys the many outdoor op- While in law school, Eric focused on business and intellectual portunities available in Montana, cooking, and traveling. Court Orders Court orders 90-day comment period on proposal to adopt reciprocity rules Summarized from Nov. 5 order No. AF 11-0244 other states within the last three years may be admitted to the The Montana Supreme Court on Nov. 5 ordered a 90-day bar if they are certified by the Commission on Character and comment period on a proposal to adopt reciprocity rules for Fitness and complete the Montana Law Seminar. Also, the admission to the State Bar of Montana. court noted that the Montana bar examination no longer tests Since 1998, passing the bar examination in Montana has on Montana law. One of the chief arguments against admission been a requirement for admission to the bar “unless waived by on motion in 2003 was that attorneys admitted that way would the Supreme Court.” In 2003, the State Bar recommended to the not be required to pass the portion of the bar that tested knowl- Supreme Court that it adopt reciprocity rules. The court unani- edge of Montana law. mously denied the bar’s motion after receiving mostly negative Montana is currently the only UBE state that does not allow public comment. admissions on motion and is only one of 12 states in the coun- In its Wednesday order, the court noted that much has try that does not do so. changed since 2003. In 2012, the court adopted the Uniform All comments must be made in writing and filed with the Bar Examination. Now, attorneys who have taken the UBE in clerk of the Supreme Court.

IN RE THE ADOPTION OF TEMPORARY electronic filing rules approved by the court, go to ELECTRONIC FILING RULES http://supremecourtdocket.mt.gov/search/case?case=17445. Summarized from Order No. AF 14-0745 THE MATTER OF APPOINTMENT OF A DISTRICT The Montana Supreme Court issued an order on Nov. 19 JUDGE TO JUDICIAL STANDARDS COMMISSION approving and adopting temporary electronic filing rules. Initially, only direct appeals to the Supreme Court will be Summarized from Order No. AF 07-0386 enabled for E-filing. The following case subtypes will be filed The Hon. Blair Jones of the 22nd Judicial District Court was electronically: elected chairman of the Judicial Standards Commission, and • Civil commitments for developmental disability the Hon. Mike Menahan was elected as a member of the com- • Civil commitments for mental illness, mission, Supreme Court Chief Justice Mike McGrath certified • Civil dependent neglect on Nov. 24. • Civil postconviction The two were chosen by an election held by the District • Criminal Court Judges. Watch future issues of the Montana Lawyer and Menahan’s term on the commission runs from Jan. 1, 2015, www.montanabar.org for more information about the rollout to June 30, 2017. of E-filing in the Montana court system. To read the temporary www.montanabar.org Page 7 ElderCare | Elder Care Tips for making a quality holiday season for elders and those with special needs Compiled by the members of the State Bar of Montana Elder ½ teaspoon baking soda Assistance Committee, Chair Twyla Sketchley. (Special thanks Topping: to Garrett Norcott, Bruce Larson, Julie Sirrs, Anne Yates, Gail ½ cup slivered almonds Bourguignon, Keith Maristuen and Twyla Sketchley for their ½ teaspoon cinnamon contributions) 2 tablespoons sugar Elder law is the holistic approach to the legal issues faced by Topping after cooking: powdered sugar elders, individuals with disabilities and their families with the Preheat oven 350 degrees goal to create the highest quality of life possible. The holiday Grease angel food cake pan with butter (bottom, sides and season can be particularly stressful for our elders and family center). Cream butter and sugar. Add egg whites, sour cream members with disabilities. To that end, this article, compiled by and vanilla. Beat well and then gradually add flour, baking the Elder Assistance Committee, is to help families this holiday powder and baking soda. Place 1/2 mixture in buttered pan and season with practical travel tips, gift ideas and alternatives for sprinkle with 1/2 topping. Place remaining half of batter in pan accommodating and including the special needs of loved ones (drop on top and carefully spread around) and sprinkle with in all holiday activities in an effort to improve the quality of the remaining topping. holidays for everyone. Bake for one hour or until knife comes out clean. Top with powdered sugar while hot. Cool completely before serving. Practical Considerations for Holiday Gathering One of the first considerations when planning a family Tofu Supplemented Smoothies (one serving) gathering for our frail, elderly or disabled loved ones is the pos- Good for all family members, but especially good for fam- sibility of spreading illness. If possible, ask all family members ily members who are on thickened liquid diets or need extra attending a family gathering to get a flu shot before the gather- calories. ing. Keep a box of tissues in each room and make sure, as much ½ cup of soft tofu as possible, drinks are provided in disposable cups or bottles ½ cup milk (dairy, soy, rice, or almond) that can be easily marked for identification. ½ cup yogurt (dairy, soy, coconut) To accommodate the special needs of our loved ones, be ½ banana sure there is one room set aside to be a quiet space where a fam- ½ cup of strawberries ily member can go to escape the hustle and bustle of a family Blend ingredients in a blender until smooth. The fruit op- gathering when needed. A quiet space is particularly important tions can be interchanged with any kind of berry, and juice can for individuals with autism, elders with dementia and small substitute for the milk. children. Elders and small children may also need a quiet place to rest amidst a family gathering. Cranberry Raspberry Jello Food Good for all family members, but especially good for family Food is a centerpiece of all holiday gatherings. In addition members who require a liquid or soft diet. to accommodating food allergies, families may also have to ac- 1 box of instant raspberry Jello commodate dietary restrictions and physical limitations during Cranberry juice (chilled) meal. This section includes recipes the whole family can share. Make Jello in accordance with the instructions on the pack- age, but replace the cold water with chilled cranberry juice. \ Garret Norcott’s Grandma’s Christmas Coffee Cake Gifts An easy-to-eat food for anyone in the family that can be- No matter how big or small, gifts are part of almost every come a beloved family tradition. holiday tradition. Finding the right gifts for elderly, frail or Cake: disabled loved ones can be a challenge. Here is a list of gifts that 1 cup butter can accommodate any hard-to-buy-for family member. 1 ¼ cup sugar • An iPod or MP3 player with a simplified speaker system, 3 egg whites preloaded with the songs or music that the family member 1 cup nonfat sour cream enjoys 1 teaspoon vanilla • Warm socks with skid-proof bottoms 2 cups flour • A soft lap blanket (there are many online retailers that will 1 teaspoon baking powder

Page 8 December-January 2014-2015 allow you to have a family photo printed on a fleece lap • Pair an older family member and a younger family member blanket to make the gift extra special) to make or help prepare a particular dish for a meal. • A family album with photos collected from various family • Task the children with creating placemats for each of the members (good for family members with memory deficits) other relatives with their names and a drawing. • Pedicures (older family members may have difficulty with foot care) Travel • Walker or wheelchair bag fitted to the particular walker or Finally, one of the most difficult things that can happen dur- wheelchair and in favorite team colors or animal print ing the holidays for an elderly, frail or disabled family member • A sensory pillow that includes various textures, ribbons and is travel. Travel is never stress free, but these tips can help make buttons (good for family members with cognitive deficits) it a little less stressful. • Gift cards for favorite restaurants or activities (older family • When traveling, build in time for your loved one to rest, members often live on limited budgets or are reluctant to make sure travel days are short, and that your loved one has spend money on items they determine are unnecessary) enough to eat and drink. • A talking electronic photo frame with the recorded voices of • Park as close as possible to all events. grandchildren • If traveling by airplane, contact the Transportation Safety • An electronic photo frame with photos from many family Administration (TSA) and request a TSA Passenger members and programmed to rotate through the photos Support Specialist to assist you and your loved one through (great for family members who live in nursing homes or security and advise you of issues related to those with assisted-living facilities) disabilities. http://www.tsa.gov/traveler-information/ • A shadow box of family photos and small memorabilia travelers-disabilities-and-medical-conditions (great for family members who live in nursing homes or • When traveling by airplane, make sure you and your loved assisted-living facilities) one wear slip-on shoes and clothing without metal zippers, • A monthly delivery of fruit or favorite food belt buckles or snaps to make going through the airport • A basket of favorite foods, candy and treats security easier. • A framed family photo with as many family members as • If your loved one has medical devices such as knee or hip possible in the photo replacements, braces or pacemakers, make sure you alert the • Handmade pictures or crafts from grandchildren airport security as you start through security checks. • An e-reader with enlarged print and preloaded books • Arrange for wheelchair assistance for your loved one • A family “coupon” book with coupons for activities, yard throughout the airport. work, housekeeping and events • If you are traveling with a loved one who has dementia, cre- • A talking clock or clock with large numbers ate a small card that you can hand to airport security, flight • Clothing that is easy to put on in favorite colors attendants and gate personnel that says: “My loved one has • A low-maintenance pet (good for those who have difficulty dementia, can become easily confused and needs extra assis- leaving home) tance. His or her name is ______.” This will allow you to alert those around your loved one of their need Family Time for help without upsetting them. Often families find family time at the holiday season awkward • Whenever traveling, make sure your loved one has all their and stressful, especially when trying to accommodate family medications and you have a list of those medications, the members with special needs. With a few accommodations, dosages and when they need to be taken. such as a quiet room, family time can be a cherished highlight • Make sure your loved one is carrying identification, emer- of the holiday family gathering. These tips are designed to help gency contact information, the travel schedule, and a list of all family members interact with one another regardless of the medical concerns in the event he/she is separated from you. limitations. A neck wallet is an easy way to carry these items. • Have younger children who are just learning to read “show • Carry a copy of your loved one’s Medicare, health insur- off” their new skills by reading to an elderly or disabled ance, identification cards and a copy of the legal documents relative. that you use to make decisions for them (health care direc- • Have younger children draw the name of an elderly relative tives, durable powers of attorney or guardianship orders). from a hat and draw that relative a picture and tell that rela- • Keep a folder with copies of all the contents of your loved tive the story about the picture. one’s wallet, important papers and medical information • Have an elderly relative tell a younger child a story and child with a trusted friend who can get you the information draw a photo for the story as the elder tells the story. quickly if needed. • Have older children draw the name of an older relative from • If available in your area, your loved one can be equipped with a hat and interview that relative about a particular topic. For a tracking device which can be tracked with a smart-phone example: How did they meet their spouse; all the places they app or through local law enforcement in the event your loved have lived; or the famous people they met. one wanders away or becomes separated from you. • Have elderly relatives show younger children photos and tell The Elder Assistance Committee wishes everyone a wonderful who was in the photo and when it was taken. holiday season. We hope these suggestions and tips will make the • Create a family game tournament with age and cognitively holiday season for you and your clients the loving celebration it appropriate games. should be. www.montanabar.org Page 9 FeatureStory | Naming a Business War stories for wisely choosing a defensible business name point… Arming your client for In the early ’80s two outfitters sprang up near Yellowstone National Park, both by the name of Yellowstone Outfitters. trademark skirmishes — or The two apparently were unaware of each other until a few years had passed. Ultimately one of the outfitters filed suit avoiding them altogether and moved for a preliminary injunction seeking to stop the other from using the mark. The district court denied the preliminary injunction. On appeal the Montana Supreme 1 2 By Trent Hooper and Bobbi Owen Court affirmed. There is no protection under state law or federal law for geographically descriptive marks, absent proof What’s in a name? When it comes to a business, the name of secondary meaning, i.e., the mark has been in use that represents the hard-earned goodwill of a business owner. The customers have come to associate the descriptive mark with a name is a trademark and represents the power to bring back specific business. The Montana Supreme Court stated the rule previous customers and build a reputation that can result in a clearly: “[N]o one can apply the name of a district or country valuable revenue stream. Yet it is not uncommon to see busi- to a well-known article of commerce, and obtain thereby such nesses choose their business names with little or no knowledge exclusive right to the application as to prevent others inhabit- or guidance about whether the name is available or defensible. ing the district or dealing in similar articles coming from the Expensive and painful trademark skirmishes over business district from truthfully using the same designation.”3 Most of and product names are not uncommon in Montana. Most of these types of cases are governed by federal law, which is the these disputes are resolved before trial through a confidential same in its refusing protection to geographically descriptive settlement of some kind. Consequently these issues are often marks. out of the public eye — but not always. So where did that leave the outfitters? The outfitters and Below we highlight several skirmishes that expose common others in that situation are left to deal with the consequences trademark pitfalls in choosing a business name. These issues of ongoing customer confusion, mail delivery confusion, can often be avoided through: (1) careful selection of a mark; lost profits, blended reputations, etc., unless one of the two (2) proper clearance of the mark; and (3) registration of the changes their name. More commonly the names are close, mark. Ultimately, careful selection of a business name can not but not quite the same. Obviously once a business has been only help the client build a powerful and profitable brand, but operating for a number of years, changing its name can be it can help the client avoid the painful and expensive experi- incredibly painful and expensive. Many choose to endure the ence of consumer confusion, or worse, litigation and poten- profit dampening consequences for years. tially losing a business name. The reputation dilution and confusion can carry signifi- Careful Selection of a Mark: cant risk. The client’s reputation can end up rising and falling based on the service and reputation of their similarly named Yellowstone Outfitters competitor. And in a less likely but potentially foreseeable For a strong protectable mark, avoid surnames, geographi- situation, if the competing owner ends up in the headlines cally descriptive marks, acronyms, or piggybacking famous for some sort of reputation-destroying activity such as meth marks. Geographically descriptive marks seem particularly distribution or sexual assault charges, the public may confuse popular, for example, Yellowstone [fill in the blank], Bitterroot your client as the criminal. [fill in the blank], Montana [fill in the blank], Capital City [fill These risks apply not only to geographically descriptive in the blank]. While these marks have some marketing value, names, but surnames, acronyms and other merely descriptive they leave the business owners with little or no way to protect terms. Trademark law does not let business owners monopo- their name, stop consumer confusion, or prevent a competi- lize last names, geographic locations, or descriptive terms to tor from cropping up with a nearly identical name. Case in 3 Warwood v. Hubbard, 218 Mont. 438, 439, 709 P.2d 637, 638 (1985) (citing Esselstyn v. Holmes, 42 Mont. 507, 114 P. 118, 121 (1911); Delaware & Hudson Canal Co. v. Clark, 80 1 Attorney, Crowley Fleck PLLP, Billings, Montana office. U.S. 311, 20 L.Ed. 581(1871)). 2 Currently a senior pursuing a Bachelor of Arts in political science at Carroll College.

Page 10 December-January 2014-2015 How strong is the brand? This chart shows where some famous brands t on the trademark spectrum of distinctiveness, with “fanciful” being the strongest and “generic” the weakest. Descriptive and suggestive marks can become strong marks by proof of secondary meaning, but even when famous are more limited in protection than fanciful or arbi- trary marks. The same spectrum of strength applies to Montana brands as to these brands.

STRONG WEAK

FANCIFUL ARBITRARY SUGGESTIVE DESCRIPTIVE GENERIC Original, contrived Common words with Words suggest the Words describe goods A brand name or terms with no no distinct link with nature of goods or or services or a region, trademark that has linguistic signi cance the goods or services services but do not a surname or aspects become synonymous directly describe them of goods or services with a product

ASPIRIN

ESCALATOR

SHREDDED WHEAT

YO-YO

Montana Lawyer graphic the exclusion of other business owners — that is until they can come and speak with an attorney that they are not inclined show that their marks have acquired secondary meaning be- to go back to the drawing board. One consolation for these come famous (discussed further in the following paragraph). clients is that their otherwise unprotectable surname or The U.S. Patent and Trademark Office (USPTO) will typically geographically descriptive mark can become protectable by reject these types of marks. If the USPTO issues a registration building a reputation (or “secondary meaning”) over time. A for this type of mark, the mark may still be difficult to enforce business owner must be able to prove secondary meaning to and subject to cancellation by a challenging party, depending the USPTO or the courts through evidence such as the length on the facts of the particular case. For a more complete list of time that the name has been used in commerce, the amount of marks that are not typically eligible for registration, see 15 of money expended on advertisements, and/or consumer U.S.C. § 1052 and MCA 30-13-303. surveys indicating that the public connects the mark with the The risks of a weak or unregisterable mark can be avoided particular business. Some examples of once weak marks that through careful selection of an “arbitrary,” “fanciful,” or “sug- became protectable by gaining secondary meaning include gestive” trademark. For a basic reference of what constitutes Kentucky Fried Chicken and McDonald’s. a weak or a strong trademark, see the trademark spectrum of Careful choice of the mark is the easiest way to avoid distinctiveness above. Of course, in reality many clients are already so committed to their chosen name by the time they Naming A Business, page 12 www.montanabar.org Page 11 advisable to move away from the newly chosen name.11 An Naming A Business executive of Avanta commented that “We thought we’d done from page 11 due diligence before, but the attorney said it is close enough and you won’t win.”12 trademark disputes. Once the mark is chosen, the availability Avanta avoided a lawsuit, but at a substantial cost. It of the mark needs to be assessed. paid $80,000 to change the new signs at its seven locations.13 Proper Clearance of the Mark: Presumably they incurred additional expenses to change the credit union’s name on debit cards, credit cards, advertising Advanta v. Avanta materials, etc.14 While the client had cleared the initial “knock The fact that a client has searched a business name and out” search for competing names, the expensive second name thinks that it is available may not mean that is the case. change could likely have been avoided by obtaining a clear- Though a business name appears available through a search of ance opinion that would have utilized a comprehensive trade- the Montana Secretary of State website, there still may be risk mark clearance search. of a trademark infringement suit. An informal search should A second Montana example is a business formerly known be followed by a professional search for a better look at users as Rattlesnake Creek Vineyard, which faced similar problems of the mark, or similar marks, across the entire country and when the owners of a Washington winery claimed that they 15 globe. There are many companies that specialize in compiling had already registered this name. When the owners of the such searches for only a few hundred dollars. The attorney Missoula-based winery first opened their doors for busi- can then review the search results and identify others who ness, they did not do a nationwide search before selecting the 16 may have superior rights to the mark and give the client a name. If they had done so, they may have identified that “clearance opinion” as to whether it is advisable to proceed a Washington winery had registered the mark “Rattlesnake 17 with the mark. The cost is small compared to even the cost of Ridge” in 1997. The owner of the Missoula winery admits responding to a cease-and-desist letter. Case in point… that when he initially saw the cease-and-desist letter from 18 Laurel Federal Credit Union had its doors open for busi- the Washington winery, he thought, “How dare they?” He ness for many years before changing its name to Avanta was ready to fight for the name, and he originally believed 19 Federal Credit Union in July 2004.4 Laurel Federal Credit that he would have a good argument in court. The name Union officials felt a need to change the name because many was chosen because the winery was near Rattlesnake Creek, people thought that it was a requirement to live in Laurel in so the Missoula winery believed they had a valid claim to 20 order to bank there.5 When it originally considered chang- it. However, after consulting counsel, the Missoula winery ing its name, credit union officials considered names such as learned that their case was weak in the face of Rattlesnake “America First” and “First Community.”6 However, through Ridge’s federal trademark, which had been in place for several 21 their own research they found that those names were already years. Rattlesnake Creek decided to change their name. used by other banks and credit unions.7 According to one ex- Trademark lawsuits are often expensive. They typically ecutive, “Avanta was picked because it was a name that meant require an analysis of consumer confusion which requires nothing but was easy and had a clean, progressive feel.”8 surveys and survey experts that can cost tens of thousands of Indeed, Avanta would fall into the class of a strong “fanciful” dollars. Legal expenses could easily run $200,000 or more if 22 trademark, not descriptive of the services offered, and would taken to trial. Therefore, even a case that is “winnable” may in theory make for a strong mark. cause serious financial hardship to a business. While the credit union believed they had selected a unique Like Avanta, Rattlesnake Creek dodged a lawsuit by safe name, this was not the case. The Montana Secretary of changing its name, but the failure to properly clear the name 23 State and National Credit Union Association both cleared the before launching into business was still costly. At the time name and the credit union incurred the expenses of chang- the Missoula winemakers had 2,000 bottles of wine with the 24 ing its name. However, when Advanta Federal Credit Union “Rattlesnake Creek” label waiting to be sold. If Rattlesnake in Utah learned of the new name, they felt it was too close to Ridge would have prevailed in a trademark infringement their own federally registered name.9 The Utah-based credit 11 Id. union gave Avanta one year to change its name before they 12 Id. 10 would file a lawsuit. Avanta conferred with its attorneys who 13 Id. advised them that Advanta’s case was strong and that it was 14 Id. 15 Robert Struckman, Trademark complaint forces Missoula winery to find another name, Missoulian, December 11, 2005, available at http://missoulian.com/news/local/ trademark-complaint-forces-missoula-winery-to-find-another-name/article_6fc1d0ea- 4 Jan Falstad, Have you heard? Laurel Credit Union changes its moniker, Billings Gazette, 7c19-50d2-8ad7-4b24e2f49745.html. July 13, 2004, available at http://billingsgazette.com/business/have-you-heard-laurel- credit-union-changes-its-moniker/article_a1b4f012-faa5-5988-923f-896b483510d1. 16 Id. html. 17 Id. 5 Id. 18 Id. 6 Id. 19 Id. 7 Id. 20 Id. 8 Id. 21 Id. 9 Advanta Forces Avanta to Become ‘Altana,’ http://thefinancialbrand.com/6794/ 22 Id. avanta-fcu-becomes-altana/ (last visited August 16, 2014). 23 Id. 10 Id. 24 Id.

Page 12 December-January 2014-2015 suit, they could have been awarded all profits obtained under were the result of the popular ad campaign — which of course the infringing mark. They also could have demanded that could be substantial. infringing product be turned over or destroyed. Of course For its part, Big Sky made clear that it had no animos- these consequences were avoided by changing the name. ity toward Anheuser-Busch, but that it wanted to protect its The Missoula winemaker renamed the business with a more claim to the trademark and avoid the public thinking that Big arbitrary mark, “Ten Spoons,” which is a combination of the Sky had copied the phrase from Anheuser-Busch.30 Whether letters of their last names.25 However, this story still dem- or not Big Sky intended to pursue a suit through trial, Big Sky onstrates the importance of being careful when you select a was able to confidently protect its mark because it owned the business name. federal registration. The consequences were a relatively swift The lessons from Avanta and Rattlesnake Creek are clear. resolution, the ability to continue to use the mark, and the Regardless of the strength of your name, proper clearance windfall of national media attention for Big Sky. of a trademark is critical before launching into business. If Big Sky had not registered the mark, the story could Trademark clearance typically takes place in two steps: (i) have been very different. Anheuser-Busch might have reg- an informal search on search engines and the United States istered the mark, and Big Sky might have ended up on the Patent and Trademark Office for the mark or confusingly receiving end of a cease-and-desist letter. Big Sky could have similar marks, and (ii), a search report from a company that been forced to abandon the mark or defend a lawsuit. At best, specializes in trademark search reports. The reports are Big Sky might have succeeded in defending its right to use the relatively inexpensive (typically $300-$400), and they provide mark in the limited geographic region that it had prior to an a fairly comprehensive look at uses of the mark or similar Anheuser-Busch registration. But even this result may have marks in commerce. The searches cover federal marks, state required substantial litigation expense. marks in all 50 states, domain names, international marks, In short, there can be tremendous value, both defensively and scores of trade journals and commercial publications. and offensively, in owning a federal trademark registration. Once the clearance search has been done, it can be used to The process may cost a couple of thousand dollars initially, analyze the critical questions of whether the mark is a good this is a bargain compared to the tens of thousands of dollars candidate for federal registration, the risk the client faces in being challenged by another mark holder, and the strength 30 Id. of your client’s mark should it need to stop infringers in the future. Naming A Business, page 23 Once a strong mark is chosen and cleared, it is ready for registration. Registration of the Mark: ‘Hold my beer and watch this’ Last winter Big Sky Brewing Co., armed with a federally registered trademark, was successful in pressuring Anheuser Busch to drop a popular advertising campaign that infringed Big Sky Brewing’s mark. Anheuser-Busch, the nation’s lead- ing brewer, launched a popular advertising campaign for its Bud Light label featuring videos with the theme “hold my beer and watch this.”26 Big Sky Brewing Co. had been using this tag line with its IPA since 2004.27 In 2009 Big Sky obtained federal registration of the mark.28 Armed with a federal trademark, and in spite of Anheuser- Montanans recently voted to retain me as Busch’s command of 47 percent of the national market, Big Sky filed suit in federal court within four weeks of the launch of the campaign.29 While Anheuser-Busch was defiant in a member of the Montana Supreme Court. I attribute my public statements, it chose to abandon the ad campaign rather than fight the suit. Anheuser-Busch was apparently savvy victory to your overwhelming and strong support. I am enough to know the strength of a federal registration. It was also likely aware that if it lost to Big Sky, it could be forced deeply grateful for the friendship and encouragement to disgorge all of its profits that a judge or jury might deem 25 Id. from so many of my Montana State Bar Association 26 Alice Miller, Big Sky Brewing Co. not a stranger to dealing with trademark infringement, Missoulian, Jan. 12, 2014, available at: http://missoulian.com/news/local/big-sky-brewing- co-not-a-stranger-to-dealing-with/article_cbe2066a-7586-11e3-9e8c-001a4bcf887a.html; see also¸Lisa Brown, A-B, Big Sky settle trademark dispute, St. Louis Post-Dispatch, January colleagues. Thank you very much. 23, 2014, available at: http://www.stltoday.com/business/local/a-b-big-sky-settle-trade- mark-dispute/article_4f5bdaf1-e59a-5569-ab94-fb0ca53adb05.html. Justice Mike Wheat 27 Id. 28 Id. 29 Id. www.montanabar.org Page 13 FeatureStory | Edward Snowden and the NSA

Edward Snowden: Hero or Traitor? 1 By G. Michael Fenner

created FBI. They compiled dossiers on thousands of American Note: This article by Creighton University Constititutional citizens, conducted illegal raids, made illegal arrests and sub- Law Professor G. Michael Fenner was originally published in The jected many citizens to interrogation. They helped local authori- Nebraska Lawyer and is reprinted with permission. ties crush labor strikes and suppress racial disturbances. WORLD WAR II: During World War II, domestic military Is Edward Snowden a hero or a traitor? Let me work my way surveillance expanded substantially. By then, military intelli- up to an answer to that question. gence was called G-2. FDR gave G-2 responsibility for protect- ing defense plants, and it established a network of thousands of I. A brief history of U.S. surveillance informants. G-2 reported on radical labor and political groups of domestic communications and what it called “semiradical” groups concerned with paci- I will start with an oversimplified history of American fism and civil liberties. Do you see a pattern here? surveillance of domestic communications: not surveillance AFTER WWII: Shortly after WWII the federal government of communications taking place outside the U.S. As someone persuaded—and here’s where the surveillance begins to look a once said, “Outside the United States, the CIA prowls the alleys little bit modern. The federal government persuaded the three without a leash.”2 major American telegraph companies to hand over most of If your data leaves the country — even if only routed their traffic. That program continued until 1975 and collected through an outside server — our intelligence community can the telegrams of 75,000 American citizens.3 access it at will. We learned not so long ago that the CIA got a THE 1960s: In the ’60s, under J. Edgar Hoover, the FBI hold of Mayer, Brown & Platt attorney-client privileged docu- devoted considerable resources to the secret surveillance of ments because the client was outside the U.S. and the docu- anti-war protestors, desegregationists and Communists. At ments were captured outside the U.S. the same time, the CIA was heavily engaged in secret domestic surveillance. Much of Hoover’s surveillance was illegal. And CIVIL WAR: Domestic surveillance by the federal gov- all domestic surveillance by the CIA was directly contrary to ernment was first used on a significant scale under President federal statutory law. The causative events were, by and large, Abraham Lincoln during the Civil War. But, of course, this was the civil rights movement and the protests against the war in surveillance of an enemy that was operating domestically. Vietnam. WORLD WAR I: During WWI a Military Intelligence When this FBI and CIA surveillance came to light, Congress Division (MID) was created within the Army. Its charge did three things. But first …. included locating German spies and saboteurs. It didn’t find MARCH 8, 1971: How did we learn of this ’60s surveillance? many enemy agents, so it turned its attention to the investiga- The first trickle of information came to the media in the form tion of Americans MID considered dangerous: real or suspected of documents stolen from the FBI. The theft happened under labor unionists, pacifists, socialists, Communists and civil rights cover of darkness on March 8, 1971, the night the country’s at- activists. tention was focused on the Fight of the Century: the Ali-Frazier AFTER WWI: After the war, MID joined with the newly fight in Madison Square Garden. Burglars took a lock pick and

Page 14 December-January 2014-2015 a crowbar and broke into the Media, Pennsylvania, office of the Thirty-six years ago Congress separated the surveillance FBI. They put nearly every document in the office into boxes, power leaving some with the executive branch and giving some carted them off to a house in the Pennsylvania woods and to a court and some to a legislative-oversight committee — cre- anonymously mailed the stolen documents to various newspa- ating two buffers between executive branch surveillance and us. per reporters. EXPLOSIONS: The next-to-the-last stop in this brief his- Here is what one of the burglars said, “When you talked to tory of domestic surveillance: (1) Technology has exploded. (2) people … about what the FBI was doing, nobody wanted to Our ability to communicate worldwide, to transmit data and believe it. There was only one way to convince people that it was documents — instantaneously, continuously and essentially for true, and that was to get it in their handwriting.”4 free — has exploded. (3) Our ability to collect, categorize, col- One of the documents was a memo from Hoover that late and store that information has exploded. (4) The ability of urged agents to step up their interviews of antiwar activists and our enemies to terrorize us has exploded. (5) On 9-11 the Twin members of dissident student groups. Hoover wrote, “[I]t will Towers exploded. enhance the paranoia endemic in these circles and will further The law is having trouble keeping up. serve to get the point across that there is an FBI agent behind JUNE 15, 2013, THE GUARDIAN: On June 15, 2013, the every mailbox.”5 Likely the most absurd of these documents British newspaper The Guardian reported the first of several revealed that the FBI sent Martin Luther King an anonymous leaks of classified material from Edward Snowden. Former blackmail letter threatening to expose his extramarital affairs if Deputy CIA Director Michael Morell said that this was the he did not commit suicide.6 “most serious compromise of classified information in the FISA, FISC, & SENATE SELECT COMMITTEE: When this history of U.S. intelligence.”7 I don’t know about that. I am not FBI and CIA surveillance came to light, Congress stepped in. qualified to judge it. I just know that it was said by a man who The year was 1978, 36 years ago. might be qualified to judge. • Congress passed a statute, Foreign Intelligence LESSONS TO BE LEARNED: Of course there are lessons to Surveillance Act (FISA) to put a leash on domestic surveillance. be learned from this history. First, these powers are conferred • Congress created the Federal Intelligence Surveillance in times of war or domestic turmoil. Historically “turmoil” has Court (FISC) where, in part, the executive branch is to seek included labor-union organization, civil-rights activism and warrants allowing domestic surveillance. war protests. • Congress created the Senate Select Committee on Intelligence to oversee our intelligence agencies. Hero or Traitor?, page 16

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The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

www.montanabar.org Page 15 • the NSA is not going to FISC for warrants. Hero or Traitor? And it appears that it may be mostly the latter two. from page 15 Why would the NSA engage in warrantless surveillance? FISA requires a warrant, but the executive branch has opin- Second, once granted, these powers are always expanded ions from Justice Department and White House lawyers stating and often in ways that are ultra vires. Like censorship, the sur- that the NSA can conduct national security operations without veiller first surveils the one thing and then looks for something a warrant. What we know about these legal opinions is that more to surveil. We all want to keep our jobs; we all want our they rely on a congressional resolution declaring war against organizations to grow. The power of the surveiller expands, the al-Qaida, the President’s commander-in-chief powers and his scope of the surveillance expands, and it keeps expanding until inherent powers over military and foreign affairs. something or someone stops it. I say, “What we know about these legal opinions” because Third, whenever we set up this kind of security system the opinions are classified. They are secret. The details of the there is a great tendency to produce “false-positive errors: [to] analysis have not been disclosed. label as suspicious people and events that are actually perfectly ■ So, we have secret justifications for the NSA not going to 8 normal.” To label as suspicious, for example, desegregationists, FISC for warrants. Add this: It is difficult to tell exactly how antiwar protesters and union organizers — those opposed to many requests for surveillance warrants FISC gets per year. This those in power. is secret as well. But there are some fairly reliable, if vague, fig- ures that indicate that FISC gets thousands of warrant requests II. Where are we today with domestic each year and that it approves all but a very few. A retired federal judge who is a friend of mine and was on surveillance? FISC, said that the reason there are so few denials is this. Often ■ Today the NSA collects metadata: Telephone metadata the Court will tell the government that their warrant request includes the number called, the number from which the call is not sufficient and the government will take it back and came, the length of the call, how often the one number calls the investigate further and redo the request to make it sufficient. other. Internet metadata includes email and I.P. addresses, who Sometimes that goes on multiple times with the same warrant an email is from and to whom it is sent, frequency of communi- request, until the government meets the legal standard. Or until cation and location information. It includes Web sites visited. It the government gives up and withdraws its request. includes the electronic traces left when a person goes online. That, he told me, is why there are not many judgments of Photo courtesy of The Billings Gazette/ Larry Mayer ■ According to a recent study, people worldwide send 182 denial. But there are many de facto denials. And, he said, the 9 The sun sets on oil drilling rigs near Watford City, billion emails each day: over 67 trillion messages a year. The court is not a rubber stamp. I believe him because I believe him. NSA collects this metadata randomly. They collect as much of it North Dakota, in this Feb. 22, 2013, photo. as they can and they keep the records for 5 years.10 III. Is It Legal? Last December, Gen. Keith Alexander — at the time he led The first problem with deciding if this surveillance is legal is the NSA and the U.S. Cyber Command — said that “[t]he NSA the problem of finding out just what is being done. It is almost is collecting metadata of more than 300 million Americans.”11 all done in secret — as surely some of it has to be. Most of Last December the population of the United States was just over what we know about what is actually being done is a result of 317 million.12 300 million is most of us. At the turn of this year Snowden’s leaks and subsequent admissions by the intelligence the Washington Post reported that the NSA collects 5 billion community that would not have been made but for Snowden’s new records a day.13 leaks. In February of this year the Wall Street Journal reported The second problem is that when the intelligence com- the story under this head- line: “NSA Gets Only 20% Of Phone munity does tell us what they are doing, it is difficult to deter- Records.” The article reports that the NSA gets 20% of the mine if they are telling us the truth. For example, in March of phone records of 95% of us. Their stated intention is to “catch 2013, James Clapper, a retired Air Force general and President up.”14 Obama’s Director of National Intelligence testified before the We’ve come a long way since the days of telegram surveil- Senate Intelligence Committee. Sen. Ron Wyden asked Clapper lance when, over 30 years, the Government collected informa- a question. As a courtesy, he had provided him a writ ten copy tion on 75,000 citizens by reading their telegrams. of the question in advance of the hearing. Clapper was not ■ FISA, the statute, requires that when the NSA wants to taken by surprise. collect metadata it must get a FISC surveillance warrant. The Wyden: “Does the NSA collect any type of data warrant allows the NSA to collect metadata only — not the at all on millions or hundreds of millions of contents of the calls, emails and the like. If the news reports Americans?” and Gen. Alexander are correct and the NSA is collecting some Clapper: “No sir.” Wyden: “It does not?” metadata of most Americans, then the surveillance court is Clapper: “Not wittingly. There are cases where either they could inadvertently perhaps collect, but not • very busy, or wittingly.”16 • issuing general warrants, or • rubber-stamping warrants, or Sen. Wyden did not believe him. His office contacted • the NSA is not abiding by FISC’s rulings,15 or Clapper’s office and asked Clapper to acknowledge that his answer had been wrong. Clapper declined. Subsequently,

Page 16 December-January 2014-2015 Snowden’s leaks clearly showed that the Director of National “reasonable.” No warrant required. The intelligence community Intelligence’s answer was incorrect. After the leak, Director argues that the kind of information they are gathering is auto- Clapper wrote to the Intelligence Committee, saying “My re- matically released to third parties — phone companies; Internet sponse was clearly erroneous, for which I apologize.”17 service providers; routers; web sites; tracking services; Google; It is difficult to know what exactly is being done because it and the like. is largely being done in secret. And, when told what is being Well, a pen register provides phone numbers called. done, it is difficult to know whether we are being told the truth Metadata reveals whom we call, how often and how long we … until we “get it in their own handwriting.” Snowden got it in talk; to whom we send emails and who all is on the distribution their own handwriting. list; what websites we visit and how long we stay — it is one A. Statutory Law thing if a person stumbles into a pornography site, a gambling Since the Snowden revelations a number of FISC judges site, a support group for those with Parkinson’s disease, or have criticized the NSA for continually collecting more infor- the site of a suspicious charity and it is another to linger. And mation than the statute and the court’s opinions allow and for remember what Gen. Alexander said last December: The NSA continuing to misrepresent its activities to the court. One judge is collecting some metadata of approximately 95 percent of all wrote that he was “exceptionally concerned” that the NSA has Americans. been operating in “flagrant violation” of the court’s orders and Earlier this year a federal district court judge issued a pre- “directly contrary” to the NSA’s own sworn statements.18 liminary injunction against some of this NSA surveillance.22 On the other hand, as I said earlier, the White House has He found the surveillance program likely an unconstitutional secret legal opinions stating that the NSA can collect much of search and seizure. He wrote that much has changed in the this information without a warrant and so neither FISA nor 34 years since Smith was decided. Our relationship with our FISC control what it can do. phones has changed. And metadata reveals so much more Is this surveillance program illegal under statutory law? It about us than just the number we call. He granted a preliminary depends on how much you know about what is being done and injunction against surveillance of the plaintiffs. The government whether you agree with the Executive Branch’s legal opinions appealed directly to the Supreme Court, which declined to take that, in this regard, the President does not have to follow statu- the appeal. tory law or court orders. U.S. v. Jones (2012): More recently there is U.S. v. Jones. The I will say this: Justice Robert H. Jackson once famously police attached a GPS to a car. The owner made several trips to wrote that the President’s power is strongest “[w]hen [he] acts a crack distribution center. A unanimous Supreme Court held pursuant to an express or implied authorization of Congress.” this tracking was an unreasonable search and seizure.23 With It is weakest when he “takes measures incompatible with the metadata the NSA is tracking us — even tracking us to crack expressed or implied will of Congress.”19 The president seems distribution centers. We can buy crack over the Internet, from to be taking action “incompatible with” the express will of the comfort of our living rooms. The federal government ar- Congress and the Court. rested a young American who they allege was running a major B. Constitutional Law drug distribution business from his laptop computer. His site And what about the Constitution? put buyers in touch with sellers, took a piece of each sale and ■ Search and Seizure: When thinking about these surveil- had a rating system where buyers and sellers could rate each lance cases we tend to jump to the 4th Amendment. Is this an other. The drugs were delivered by UPS and USPS. The money unreasonable search and seizure? Well, in many ways the 4th was electronic.24 He got rich before he got caught. Amendment is irrelevant here. It is self-executing in criminal Riley v. California (2014): And there is a third case, one trials. There is no trial here. from this year. Riley v. California involved a warrantless search Regardless, the NSA argues that the 4th Amendment does of the data on the cellphone of a man who had been arrested. not apply to the collection of metadata. First, they argue that the Regarding exceptions from the Constitution’s requirement that Fourth Amendment applies only to “law enforcement” and they the police get a warrant, the Court said that it assesses the de- are not involved in law enforcement. They are just gathering gree to which the search intrudes on privacy versus the degree data relevant to national security and foreign affairs.20 Second, the search is needed for the protection of legitimate government they cite a 1979 Supreme Court opinion, Smith v. Maryland.21 interests. “Modern cell phones,” said the Court, Smith v. Maryland (1979): A pen register is a device that have an immense storage capacity. Before records all numbers called from a particular telephone landline. cellphones, a search of a person was … only a A victim was being called by the man who had robbed her. At narrow intrusion on privacy. But cell phones the phone company, and without a warrant, the police installed can store millions of pages of text, thousands of a pen register on Smith’s line. Sure enough, he called the victim. pictures, or hundreds of videos. Smith argued that the pen-register evidence was an unreason- able search and seizure. [T]he Fourth Amendment was the founding The Supreme Court held that Smith did not have an expecta- generation’s response to the reviled “general tion of privacy regarding phone numbers he called. First, those warrants” … of the colonial era, which allowed numbers were automatically given out to a third party — the British officers to rummage through homes in phone company that routed the calls to the recipient. Second, if Smith did have a personal expectation of privacy, it was not Hero or Traitor?, page 18

www.montanabar.org Page 17 ■ Free Speech: Some argue that the real constitutional Hero or Traitor? problem here is freedom of speech. We become hesitant to from page 17 speak if we believe government is listening. Interpretation of the free speech — preventing government from taking actions an unrestrained search for evidence of criminal that cause the timid and the poor to refrain from speaking for 25 activity. fear of prosecution and the attendant costs, both financial and The court said that the police need a warrant before they psychological. can search a cellphone. It also recognized that, “One well-rec- During the Civil Rights movement of the ’60s, Southern ognized exception applies when the exigencies of the situation sheriffs would go around to NAACP meetings and the like with make the needs of law enforcement so compelling that [a] cameras with no film in them. They pretended to take pictures warrantless search is objectively reasonable under the Fourth of those in attendance. It was a form of intimidation. And it Amendment.”26 worked on some people. If the test for exceptions to the warrant requirement is a bal- Remember the FBI memo quoted earlier? Hoover urged ance of the degree of intrusion on one’s privacy and the degree agents to step up their interviews with antiwar activists and to which the search is necessary to serve legitimate government members of dissident student groups. “It will enhance the para- interests, then let us consider each side of that balance. noia endemic in these circles and will further serve to get the On the one side, the intrusion into privacy seems pretty point across that there is an FBI agent behind every mailbox.” serious. The Court said that the 4th Amendment was a reac- Current NSA practices get the point across that we are under tion “to the reviled ‘general warrants’ … of the colonial era, surveillance in record numbers and concerning record amounts which allowed British officers to rummage through homes in of personal information. an unrestrained search for evidence of criminal activity.” This The problem, some say, is that all of this surveillance of sounds a lot like what the NSA is doing today: rummaging in an phone calls, emails, tweets, web searches and the like chills unrestrained search for evidence of criminal activity. speech. And most days on the news we hear examples of sur- On the other side, the government’s interest today is one veillance chilling speech in places like China, Russia and the right at the top of the list: national security. But national se- Middle East. Some see it happening here. curity was the interest of the British “general warrant” as well. C. Is It Legal? — I Don’t Know The extent to which this much surveillance is needed to serve Justice David Souter once wrote, “In my own ignorance I national security is difficult to determine. Both the surveillance have to accept the real possibility that ‘if we had to decide today and whatever security it has provided are secret. … just what the First Amendment should mean in cyberspace, Exigent circumstances include terrorist situations. But what we would get it fundamentally wrong.’”27 Justice Anthony we have here is not a “terrorist situation,” but the NSA spread- Kennedy has written, “The judiciary risks error by elaborating ing a wide net to see if they can find something that looks like it too fully on the Fourth Amendment implications of emerging could possibly be a terrorist situation. technology before its role in society has become clear.”28 I think One response may be, “Well, the NSA is going to FISC and the problem with discussing the law as applied to this massive getting warrants.” And perhaps they are, but 300 million war- surveillance is that we are applying old models to new technolo- rants? It sounds a lot like those “reviled ‘general warrants.’” gies. How do you govern 21st century communication with And there is a history of NSA clouding the issue, if not out- 19th and 20th century models? Not well. right lying about what they are doing. It is, after all, the culture Judge Leon from the District of Columbia was addressing of spying that the spies must lie about even the most basic fact the Supreme Court’s opinion in the Smith case, the case heav- — who they are. There is also evidence that the NSA does not ily relied on by the NSA, when he said, “The notion that the always comply with the FISC Court’s orders. It all looks a lot government could collect similar data on hundreds of millions like unrestrained rummaging. of people and retain that data for a five-year period, updating it ■ Privacy: Second, there is the independent right-to- privacy with new data every day in perpetuity, was …, in 1979, the stuff argument — independent of the Fourth Amendment search- of science fiction.”29 and-seizure argument. This is not likely to get very far with the Is it legal? I don’t know. We are using 100+ year-old models current Supreme Court. It is too amorphous a right for this to solve today’s problems. So much is secret and shrouded in court and too tied into abortion. half-truths or outright lies. Members of FISC have criticized the Outside of the 4th Amendment, there currently is no right NSA for violating FISA and the surveillance court’s orders. The to privacy regarding surveillance. But perhaps there should executive branch says that it does not have to comply with leg- be. Even if the NSA is only collecting metadata, it can learn a islative or judicial mandates. One federal judge has found that lot about the private parts of your life. Are you going to porn this surveillance is likely unconstitutional, a couple of others sites, gambling sites, or Alzheimer’s sites? Are your porn sites have said it is not unconstitutional. heterosexual, homosexual, transsexual — or do they involve Is it legal? We won’t know until theSupreme Court tells us. children? What do you watch on TV, what books do you order And that Court has had a couple of opportunities to take this from Amazon, what movies do you order from Netflix, what up and has denied cert. magazines do you read online? Do you regularly call an AIDS IV. Who Guards the Guardians? clinic, a psychiatrist or a woman who is someone else’s wife? And do you do so from the privacy of your home? There are serious national security concerns at risk here.

Page 18 December-January 2014-2015 And a first-job of government is keeping its people safe and significant terror plots have been thwarted. And, you’d think secure. We must protect the homeland. that if there were some solid evidence of thwarted plots the Let’s go back to our ancient roots for a moment, when we government could have submitted that evidence to the Court — hunted by day and we either lived in caves or envied those who and this can be done in camera.31 Secrets needn’t be revealed. had caves. That is when we learned this: No matter how strong It does not have to be done in open court. As with the Nixon you are, you are vulnerable when you go to sleep. It is just as tapes, it can be turned over to the judge. Eyes only. true today, when we live in grand homes and others live in It is difficult to assess what is being done because so much of caves. No matter how strong we are, we are vulnerable when we it is done in secret. And when they do tell us something, their go to sleep. Someone has to stay alert. record of telling the truth is not a very good one. The intelli- There is a pyramid famous in some circles: Maslow’s hier- gence community must regain the trust of the Courts by being archy of needs. What we as humans need first is food, drink, open and candid with federal judges. The executive branch has shelter and warmth. What we need second is security. All other to tell the truth, at least to the other Branches. Separation of needs build on that base. Government must prevent the use of powers cannot work when two of the three branches do not force directed against its people. know what is going on. But of course, there is another side to this: On the one hand, The question for the intelligence community should not be our guardians must remain awake and alert. On the other hand, “Can we keep this all secret?” Rather, the question should be as Justice Kennedy put it, “Liberty protects the person from un- “How much do we really need to keep secret?” The real problem warranted government intrusions ...”30 The intrusions keep us with secrecy is not secrets, but stupidity. The problem with spy- safe so that we may have liberty. And yet, each intrusion costs ing is not spying, but stupidity. One of the lessons of the history us some measure of liberty. of secrecy is that once we begin keeping secrets, we don’t seem So the question becomes, How do we protect ourselves from to stop. We don’t ever stop with keeping the big things secret. those who protect us? How do we maintain the balance between We move on and stamp small things as secret as well. Likewise, safety and liberty? And who decides where that balance lies? once we spy on the one, we move on and spy on the other. So far it seems to be mostly the Executive Branch. You may It was revealed last August that the CIA — you remember: trust this President, but not his predecessor. Or vice versa. overseas it prowls the alleys without a leash, but is forbidden I’ll tell you who I do not trust with this power: NIXON & from domestic spying — admitted that it has been spying on the HOOVER. Over the long haul of history, I don’t trust presi- Senate Select Committee on Intelligence. It secretly monitored dents to make these kinds of decisions. And I am pretty sure it the emails of its guardian. would have troubled our Founding Fathers. ■ Regarding presidential war powers, the war against terror V. Edward Snowden: Hero or Traitor? will outlive me and my friends. It may have been fine in the Snowden, hero or traitor? There are, I suppose, four posi- past to give a President this kind of unfettered power when we tions. Traitor. Hero. Both. Too soon to tell. My position is the were at war with a defined enemy and one side or the other was latter. History will judge Edward Snowden. Right now it is too going to win in a few years. War no longer comes in such neat soon to tell. packages. He surely is a criminal, but then so was Martin Luther King, ■ Regarding the unitary executive, as most recently defined Jr. He was a criminal who broke segregationist laws in his by John Yoo and Dick Cheney, it justifies effectively unchecked crusade for racial justice. And he is a hero. Edward Snowden presidential power intelligence gathering. “Unchecked” in- is a criminal. He broke the law, he says, to stop massive illegal cludes at least these two things: the President can set aside laws domestic spying by the NSA, as if the Watergate burglary had that attempt to limit his power over national security; and his been classified secret and he’d leaked that information. He says actions are not subject to judicial review. he is protecting our liberty, just what MLK Jr. was doing. Will This is what the Founding Fathers knew: When you give history judge Snowden to be a hero? I don’t know. the Chief Executive too much power, it does not end well. Too Perhaps a close analogy is Daniel Ellsberg. In the late ’60’s much power in a king, general, or president leads to suppres- the Rand Corporation conducted a study of government deci- sion, repression, even genocide. The Arab Spring lasted about as sion making during the War in Vietnam. The report was not fa- long as Spring in North Dakota. vorable to the United States. It concluded, among other things, Who draws the line between security and liberty? Well, it is that the executive branch had consistently lied to Congress and all three branches. But, since Marbury v. Madison, in the end it the American people about the war. In 1969 Ellsberg secretly is the Judicial Branch. The courts must play a big role. Of course photocopied that report. He provided photocopies to the New courts can only react to what they know. For this to work, one York Times. He released a stolen national-security document to branch cannot be allowed to hide the ball from the others. Our the press and the public. judges need to hold the secret-keepers’ feet to the fire. As Judge As with Snowden, at the time some considered Ellsberg a Leon has done, courts must hold the NSA to FISA’s warrant traitor and others considered him a hero. Perhaps in Snowden’s requirement and they need to hold the NSA to offering some case the answer to the hero/traitor question is that both are evidence that it needs the information — that in each applica- right, but that in the end, like Daniel Ellsberg, one day Snowden tion they have the compelling interest of national security on will not have a national holiday named after him and will be their side. Judge Leon wrote that there is little evidence that any Hero or Traitor?, page 20 www.montanabar.org Page 19 11 CBS News, “60 Minutes,” John Miller interview with Gen. Keith Al- Hero or Traitor? exander (Dec. 15, 2013) available at http://www.cbsnews. com/news/ from page 19 nsa-speaks-out-on-snowden-spying/ (last visited Oct. 19, 2014). largely forgotten. But in his wake, he might have left some posi- 12 http://www.census.gov/popclock/ (last visited Oct. 19, 2014). tive changes in the oversight of our national security system. Hero or traitor? “Maybe so and maybe not.”32 13 Bryan Fung, The Washington Post, “The Switchboard: NSA Is Col- lecting 5 Billion Cellphone Geolocation Records a Day,” found at G. Michael Fenner received his Bachelor of Arts degree from http://www.washingtonpost.com/blogs/the-switch/ wp/2013/12/05/ Kansas University in 1965; and his JD, with distinction, from the the-switchboard-nsa-is-collecting-5-billion- cell-phone-geolocation- University of Missouri-Kansas City in 1969. From 1969-1972 he records-a-day/ (last visited Oct. 19, 2014). was a trial attorney in the Honors Law Graduate Program with the United States Department of Justice. He joined the Creighton Law 14 Wall Street Journal (Saturday/Sunday Feb.8-9 (2014). faculty in 1972. He served as president of the Nebraska State Bar Association in 2013-2014. 15 As for the NSA not following the Orders of the FISC, see Ryan Liza, State of Deception, The New Yorker, Dec. 16, 2013, at 56.

Endnotes 16 Id. at 48.

1 This article began as a 20-minute speech to the Omaha Bar As- 17 Id. at 50. sociation and became a one-hour speech to the 8th Circuit Judicial Conference. 18 Id. at 56.

2 John Rasdan, “The Unresolved Equation of Espionage and Inter- 19 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) national Law” (2007), reprinted in “Ethics of Spying: A Reader for the (Jackson, J., concurring). Intelligence Professional” (Jan Goldman ed. 2010). 20 See federal register, executive order 12333—United States Intel- 3 Up to this point, much of this history is based on material found at ligence Activities, 46 F.R. 59941, 3 C.F.R. 1981 Comp, at 200, found at The Oxford Companion To American Military History Domestic Sur- http://www.archives.gov/federal- register/codification/executive- veillance (Oxford University Press, Inc., 2000) found at Answers.com order/12333.html (last visited Oct. 19, 2014). 19 Oct. 2014. http://www.answers. com/topic/domestic-surveillance (last visited Oct. 19, 2014). 21 Smith v. Maryland, 442 U.S. 735 (1979).

4 Newsfeed.Time.com (Jan. 7, 2014) available at http://newsfeed. 22 Klayman v. Obama, 957 F. Supp. 2d 1 (D.C. D.C. 2013). time.com/2014/01/07/new-details-on-historic-fbi-office-burglary- and-other-fascinating-news-on-the-web/ (last visited Oct. 19, 2014). 23 United States v. Jones, 132 S.Ct. 945 (2012).

5 Betty Medsger, “Remembering an Earlier Time when a Theft Un- 24 Danny Yardon, The Wall Street Journal, “Arrest Made of Al- masked Government Surveillance,” The Washington Post (Jan. 10, leged Head of Secret Online Drug Market,” (Oct. 2, 2013), avail- 2014) available at http://www.washingtonpost.com/lifestyle/style/ able at http://online.wsj.com/articles/SB1000142405270230349 remembering-an-earlier-time-when-a-theft-unmasked-government- 2504579111804007803082 (last visited Oct. 19, 2014). surveillance/2014/01/10/30e9ee44-7963-11e3-8963-b4b654bcc9b2_ story.html (last visited Oct. 19, 2014). 25 Riley v. California, 537 U.S. , 134 S.Ct. 2473, 2489-94

6 Editorial: Los Angeles Daily News (Jan. 7, 2014), available at http:// 26 Id. (internal quotation marks omitted). www.dailynews.com/opinion/20140107/unchecked-gov- ernment- power-leads-to-dangerous-excess-editorial (last visited Oct. 19, 27 Denver Area Educ. Telcoms. Consortium v. FCC, 727, 777 (1996) 2014). (Souter, J., concurring) (quoting Lawrence Lessig, The Path of Cyber- law, 104 Yale L. J. 1743, 1745 (1995)). 7 CBS News, “60 Minutes,” John Miller interview with Mike Morell (Oct. 30, 2013) available at http://www.cbsnews.com/news/the-dep- 28 City of Ontario v. Quon, 560 U.S. 746, 759 (2010). uty-director-mike-morell/ (last visited Oct. 19, 2014). 29 Klayman, supra at 47. 8 Malcolm Gladwell, “Trust No One,” The New Yorker 70, 73 (July 28, 30 Lawrence v. Texas, 539 U.S. 558, 562 (2003). 2014). 31 Klayman, supra at 41 n.65. 9 “8 Reasons Why Email is Vital for Online Campaigning and Fund- raising,” http://www.campaignion.org/blog/8-rea-sons-why-email- 32 Trey Anastasio & Thomas Marshall, Phish, Stash, on “A Live vital-online-campaigning-and-fundraising (last visited Oct. 19, 2014). One”(Electra Entertainment Group 1995). 10 PRO PUBLICO, FAQ: “What You Need to Know About the NSA’s Surveillance Programs,” http://www.propublica.org/article/nsa-data- collection-faq (last visited Oct. 19, 2014).

Page 20 December-January 2014-2015 Fastcase Member Benefit Fastcase announces lineup of free webinars on schedule for 2015 min.) Sign up to learn more using the links below. Fastcase provides free live training webinars so that you can learn how to use Fastcase right from • Wed, Jan 7, 2015 12:00 PM – 1:00 PM EST — the comfort of your own computer. https://www1.gotomeeting.com/register/581222648 Each of our webinars carries free • Thu, Feb 5, 2015 12:00 PM - 1:00 PM EST — CLE credit from participating bar https://www1.gotomeeting.com/register/236570929 associations or partners. Credit may • Wed, Mar 4, 2015 4:00 PM - 5:00 PM EST — be restricted to members of that bar https://www1.gotomeeting.com/register/813840976 association or partner organization, • Thu, Apr 9, 2015 12:00 PM - 1:00 PM EDT — so please check with your bar asso- https://www1.gotomeeting.com/register/961359488 ciation or partner organization for • Thu, May 7, 2015 9:00 PM - 10:00 PM EDT — further details. For webinar handouts https://www1.gotomeeting.com/register/612194928 or to review our accreditation listings, • Thu, Jul 9, 2015 4:00 PM - 5:00 PM EDT — please go to www.fastcase.com/webinars. The 2015 Fastcase https://www1.gotomeeting.com/register/647081280 webinar schedule is below. • Thu, Aug 6, 2015 12:00 PM - 1:00 PM EDT — https://www1.gotomeeting.com/register/777675625 Introduction to Legal Research on Fastcase • Thu, Sep 10, 2015 3:00 PM - 4:00 PM EDT — Introduction to Legal Research is designed for new Fastcase https://www1.gotomeeting.com/register/448329793 users. The presentations cover basic Fastcase features with a • Thu, Oct 8, 2015 4:00 PM - 5:00 PM EDT — focus on case-law searches and statute searches. (60 min.) Sign https://www1.gotomeeting.com/register/414858904 up to learn more using the links below. Introduction to Boolean (Keyword) Searches • Tue, Jan 6, 2015 12:00 PM - 1:00 PM EST — Introduction to Boolean (Keyword) Searches is designed for https://www1.gotomeeting.com/register/245018184 users who are already familiar with the basics of Fastcase but are • Tue, Feb 3, 2015 12:00 PM - 1:00 PM EST — new to Boolean (keyword) searches or want to learn how to be https://www1.gotomeeting.com/register/144636649 more efficient using Boolean logic on any legal search engine. • Tue, Mar 3, 2015 4:00 PM - 5:00 PM EST — (60 min.) Sign up to learn more using the links below. https://www1.gotomeeting.com/register/544779888 • Tue, Apr 7, 2015 12:00 PM - 1:00 PM EDT — • Tue, Jan 13, 2015 12:00 PM - 1:00 PM EST — https://www1.gotomeeting.com/register/958058312 https://www1.gotomeeting.com/register/647258344 • Tue, May 5, 2015 3:00 PM - 4:00 PM EDT — • Tue, Feb 10, 2015 12:00 PM - 1:00 PM EST — https://www1.gotomeeting.com/register/170446529 https://www1.gotomeeting.com/register/382941577 • Tue, Jul 7, 2015 4:00 PM - 5:00 PM EDT — • Tue, Mar 10, 2015 4:00 PM - 5:00 PM EDT — https://www1.gotomeeting.com/register/677219216 https://www1.gotomeeting.com/register/893259217 • Tue, Aug 4, 2015 12:00 PM - 1:00 PM EDT — • Tue, Apr 14, 2015 12:00 PM - 1:00 PM EDT — https://www1.gotomeeting.com/register/146107337 https://www1.gotomeeting.com/register/233925584 • Tue, Sep 8, 2015 3:00 PM - 4:00 PM EDT — • Tue, May 12, 2015 3:00 PM - 4:00 PM EDT — https://www1.gotomeeting.com/register/349328984 https://www1.gotomeeting.com/register/132471424 • Tue, Oct 6, 2015 4:00 PM - 5:00 PM EDT — • Tue, Jul 14, 2015 4:00 PM - 5:00 PM EDT — https://www1.gotomeeting.com/register/252081632 https://www1.gotomeeting.com/register/906998793 • Tue, Aug 11, 2015 12:00 PM - 1:00 PM EDT — https:// Advanced Tips for Enhanced www1.gotomeeting.com/register/964664072 Legal Research on Fastcase • Tue, Sep 15, 2015 3:00 PM - 4:00 PM EDT — https:// Advanced Tips for Enhanced Legal Research on Fastcase www1.gotomeeting.com/register/179757072 offers a quick refresher on case law search basics as well as a • Tue, Oct 13, 2015 4:00 PM - 5:00 PM EDT — https:// number of research tips that highlight advanced features. (60 www1.gotomeeting.com/register/510292481

www.montanabar.org Page 21 State bar of montana Serving the people of Montana and their attorneys Unlock your member benefits at www.montanabar.org If you haven’t visited us online since our new website launched in July, you should! You will need to set up a password, if you haven’t already. Select “forgot password” to set one up. On the site, you can access many member benefits, including:

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Page 22 December-January 2014-2015 of expanding its territory in the future, or of licensing its work Naming a Business, from page 13 to others, he or she should seriously consider obtaining a federal trademark registration. in legal expense or lost goodwill that the client may incur by not clearing its trademark rights. Conclusion State trademark registrations are another option. They are As demonstrated by these cases, proper selection, clearance inexpensive and have a number of benefits, including making and registration of a trademark are critical aspects to choosing the client’s use of the mark known to others, and providing a a business name. This can be a hard pill to swallow for a cash- registration number that can be used to dissuade others from strapped business looking to cut costs. The selection of a weak infringing uses. Unless a mark is registered federally, howev- mark, failing to properly clear the marks or failing to federally er, it is enforceable only within the geographical region where register the mark can create risks. The analysis is not always it is actually being used. If a business owner has any intention simple, but the benefits to the client can be huge. Lawyer Referral & Information Service When your clients are looking for you ... They call us

How does the LRIS work? Calls coming into the LRIS represent every segment of society with every type of legal issue imaginable. Many of the calls we receive are from out of State or even out of the country, looking for a Montana attorney. When a call comes into the LRIS line, the caller is asked about the nature of the problem or issue. Many callers “just have a question” or “don’t have any money to pay an attorney”. As often as pos- sible, we try to help people find the answers to their questions or direct them to another resource for assistance. If an attorney is needed, they are provided with the name and phone number of an attorney based on location and area of practice. It is then up to the caller to contact the attorney referred to schedule an initial consultation.

It’s inexpensive: The yearly cost to join the LRIS is minimal: free to attorneys their first year in prac- tice, $125 for attorneys in practice for less than five years, and $200 for those in practice longer than five years. Best of all, unlike most referral programs, Montana LRIS doesn’t require that you share a percentage of your fees generated from the referrals!

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It’s easy to join: Membership of the LRIS is open to any active member of the State Bar of Montana in good standing who maintains a lawyers’ professional liability insurance policy. To join the service simply fill out the Membership Application at www.montanbar.org -> Need Legal Help?-> Lawyer Referral (http://goo.gl/BP2iXn) and forward to the State Bar office. You pay the registration fee and the LRIS will handle the rest. If you have questions or would like more information, call Kathie Lynch at (406) 447-2210 or email [email protected]. Kathie is happy to better explain the program and answer any questions you may have. We’d also be happy to come speak to your office staff, local Bar or organization about LRIS or the Modest Means Program.

www.montanabar.org Page 23 State Bar News Reception for Chief Judge Thomas is Jan. 22 There will be a reception to honor the Hon. Sidney University in 1975 and his Juris Doctor from Thomas, the new chief judge of the Ninth Circuit Court of the University of Montana School of Law in Appeals, on Jan. 22 in Billings. 1978. His court is in Billings. The reception will be from 4 to 6 p.m. at the Petroleum Also, the Federal Practice Section will be Club in Billings. It is being sponsored by the Federal presenting a federal practice CLE in conjunc- Practice Section of the State Bar of Montana, the State Bar of tion with the reception. Montana and the Yellowstone Area Bar Association. Thomas Details on the CLE were unavailable as of Thomas, 61, a Montana native, took over as chief judge press time. Watch for brochures in the mail or on Dec. 1. He has served on the Ninth Circuit since Jan. 2, check the calendar at montanabar.org for details. 1996. He received his bachelor’s degree from Montana State 11 Bar members, 1 UM law student win election to Montana Legislature Dudik Essmann Fitzpatrick Hansen There were 11 members of the State Bar of Montana elected to the Montana Legislature on Nov. 4. Elected to the state Senate were Sen. Kris Hansen, SD14, Havre; and Sen. Nels Swandal, SD30, Livingston. Elected to the state House were Rep. Steve Fitzpatrick, HD20; Rep. Hill Knudsen McConnell Monforton Austin Knudsen, HD34; Rep. Jeff Essman, HD54; Rep. Art Wittich, HD68; Rep. Matthew Monforton, HD69; Rep. Nate McConnell, HD89; Rep. Ellie Boldman Hill, HD90; Rep. Kimberly Dudik, HD 94, Missoula; and Rep. Andrea Olsen, HD100, Missoula. Another winner, Rep. Andrew Person, HD96, currently is a student at the University of Montana School of Law. The State Bar will be tracking several bills throughout the session. Check www.montanabar.org for more information as the session nears. Olsen Swandal Wittich Person Continuing Legal Education Annual CLE & Ski program is Jan. 16-18 at Big Sky The popular Annual CLE & Ski program has been scheduled Brian Taylor, of Hall & Evans , Billings. for Jan. 16-18 at Big Sky Resort. A new feature for this CLE is the option to order CLE materi- Presentations include training on Fastcase legal research; a als on a USB drive. Cost is $10 per USB drive. To take advantage look at the Skiers Responsibility Act; a presentation by Montana of this offer, visit the online registration page in the calendar at Attorney General Tim Fox; and a judicial panel and Supreme Court www.montanabar.org, or call 406-447-2206. update from Chief Justice Mike McGrath and Justice Mike Wheat. Faculty presenters are Mikel Moore, of Moore, Cockrell, UPCOMING CLE Goiuoechea & Axelberg P.C. in Kalispell; Kristen Juras, adjunct professor at the University of Montana School of Law; Greg n CLE & Ski—Jan. 16-18, 2015, Big Sky Resort, Yellowstone Munro, interim dean of the University of Montana School of Conference Center Law; Mark D. Parker, of Parker, Heitz & Cosgrove PLLC in n Trust Account Management Webinar – Jan. 21, 2015 Billings; Bruce Spencer, Law Offices of Bruce M. Spencer, Helena; n Annual Real Estate CLE (Fairmont) — Feb. 13, 2015 and Tom Singer, Axilon Law Group, Billings. Co-moderators will n Current Issues in Adjudicating Existing Rights — SB 355 be Susan Gecho Gobbs, of the People’s Law Center, Helena; and and Filing Exempt Water Rights Webinar – Feb. 18, 2015

Page 24 December-January 2014-2015 STATE BAR OF MONTANA 2015

MODERATORS Susan Gecho Gobbs, People’s Law Center, Helena Brian Taylor, Hall & Evans, Billings

FACULTY CLE Mikel Moore, Moore, Cockrell, Goioechea & Axelberg, Kalispell Greg Munro, UM School of Law | Kristen Juras, UM School of Law Mark D. Parker, Parker, Heitz & Cosgrove, Billings Bruce Spencer, Law O ces of Bruce Spencer, Helena & Tom Singer, Axilon Law Group, Billings SPECIAL GUEST SPEAKERS Montana Supreme Court Chief Justice Mike McGrath Montana Supreme Court Justice Mike Wheat SKI Montana Attorney General Tim Fox

BIG SKY RESORT | JAN. 16-18 www.montanabar.org Page 25 NOW WE CAN ROUNDUP ANGELA’S WISDOM AND CONRAD’S OUTLOOK. Even in this big state, making a connection is closer than you think.

Conrad, MT POP. 2,570

Angela, MT POP. 31

Roundup, MT Wisdom, MT POP. 1,867 POP. 98 Next generation of lawyers can meet

In Montana and across the country, lawyers from every walk of the profession are looking to connect with theirother lawyers match for mentorships, guidancewith and career mentorship opportunities. This is especially important service right now in Montana’s rural communities, many of which have little-to-no access to a legal professional. “What we’ve got here is failure to communicate.” to connect with up and coming lawyers, if the practice of law ALPS, the State Bar— of The Montana’s Captain endorsed in ‘Cool professionalHand Luke’ is liability substantive insurance and rewarding, carrier, is andproud if ourto introduce system continues ALPS to Attorney Match. Whether you’re nearing retirement and matriculatelooking to transition qualified yourand licensedpractice attorneys,or you’re thinkingthen where is the about hanging yourBy Mattown Lubaroffshingle out on Main Street, ALPSbreakdown? Attorney Match can help you connect with others in the field. ALPS Attorney Match is free and sign up is quickIt mayand easy. come down to communication. In rural areas of the “Cool Hand Luke” centers on the plight of Luke Jackson’s country, it’s the challenge of communicating the benefits of fight againstCreate a brokenyour ALPS system. Attorney Our current Match legal profile system today. may The not first living 200 and Montana working attorneys on Main to Street,register USA, will and be notentered chasing to the be as broken,win an but iPad we aremini. facing a communication barrier on the highest salary possible to help climb the mountain of debt faced cusp of leaving large swaths of rural America with no access to by more and more law school graduates. In these rural com- legal services. munities, the prospect of building a law practice while enjoying The most recent data about the law school graduating class the quality of life that a smaller town can provide can be an of 2013 shows that the job market continues to be tough for appealing option. Indeed the work being done by practicing at- new lawyers. Not quite as dire as Paul Newman’s character’swww.alpsattorneymatch.com torneys in more rural areas is impactful case work, work that an plight, but with only 57 percent of 2013 graduates being placed associate in a large firm may not get to see for years. in long-term, full-time positions where Successful communication, as Cool Hand Luke learned, bar passage was required; the news isn’t requires not just the impact of sending a exactly uplifting. message, but also another person willing However, we also know that over ALPS and able to receive that message. To help the next 10 years an estimated 400,000 ATTORNEY MATCH facilitate the communication is ALPS attorneys will be looking to retire; Attorney Match, a free resource that many of them are solo attorneys with no succession or transi- brings together attorneys from every walk tion plans for their practices. In communities where there are of the profession. Designed by ALPS, this easy-to-use service is attorneys, many of them are of the Baby Boomer generation; a conduit for mentorship and clerkship opportunities through- and while retirement may not be on the doorstep; that knock out the legal community. From a risk management perspec- will come sooner rather than later. tive, stronger communication among lawyers, whether in the Mentorship is an important and vital step in the training of form of developing a mentorship relationship or working on the next generation of lawyers, as well as providing the oppor- a blueprint for succession, helps mitigate risk through shared tunity for experienced attorneys to find potential successors. experiences and proactive planning. The need to connect our young lawyers with our retiring law- Whether you’re a young lawyer looking for a mentor or yers is significant and in many cases, urgent. Mentorship helps you’re a seasoned attorney looking to transition your practice in young attorneys learn the real life scenarios that may affect their a few years, the time is now to establish your connections. Visit practice while forging relationships between the current and www.alpsattorneymatch.com today and sign up to see how you future leaders of the legal industry. It also helps established law- can make a match. yers give back to the profession and makes it better as a result. Matt Lubaroff is director of client services with ALPS If the jobs are there, if retiring attorneys want and need

1-888-385-9119Montana’s Lawyers Assistance Program Hotline Call if you or a judge or attorney you know needs help with stress and depression issues or drug or alcohol addiction .

Page 26 December-January 2014-2015 Season’s Greetings from the Montana Justice Foundation

Because all people deserve equal access to safety, security, and opportunity, the Montana Justice Foundation works to achieve equal access to justice for all Montanans.

• Legal Aid Grants • Law Related Education M • Loan Repayment Assistance Program JUSTICE Many thanks for your support! May the joy of FOUNDATION Making Justice Accessible the season be with you the whole year through. to All Montanans

To learn more about the Foundation and our work or to make a tax-deductible gift please visit us at: www.mtjustice.org

www.montanabar.org Page 27 Guest Opinion Citizens United decision: A thumbscrew that just keeps turning on We the People By James C. Nelson best way to remove from office a justice they oppose—i.e. one who fails to march lockstep with their economic or political The thumbscrew was a favorite of medieval torturers and agenda. And, sadly, as Skewed Justice shows, this misleading 18th century slave traders — the thumbs or toes of the victim and malevolent tactic works. “The influence of campaign spend- were inserted into the device, and then were slowly and painful- ing on judicial decision making extends to a wide range of cases ly crushed by incremental turns of the screw. The U.S. Supreme beyond the primary policy interests of the contributors them- Court’s 2010 decision in Citizens United (CU) works like that — selves” — to the prejudice of the fundamental rights in which every little turn of the CU screw crushes another constitutional all Americans have a stake. right of its victims, ordinary people. Skewed Justice demonstrates that because of the explosion We know that CU let slip the dogs of Big Money, Big of independent expenditures resulting from Citizens United, Business, Big Politics and Big Religion to spend unlimited outside groups get what they want by buying TV ads that either amounts of dark, mega-money to buy “speech” so as to “in- help sympathetic justices win or that defeat those who are not form” the public about candidates and issues. Only fools, or in step — thus these groups can spend their way into shaping the Roberts’ majority, could fail to foresee that this monetary the ideological composition of the judiciary. Furthermore, deluge would corrupt campaigns, deceive voters, and drown the study shows that judicial candidates, recognizing this fact, out the voices and votes of ordinary citizens. But, then, I repeat either consciously or unconsciously bias their decisions to avoid myself. — or take advantage of — these ads. So, here’s the latest turn of the CU screw. The nonpartisan Bottom line: when judicial candidates are forced to look American Constitution Society has just released a follow-up to over their shoulders for fear of being saddled with an unpopu- its 2013 Justice at Risk report. Authored by Emory law profes- lar, albeit legally correct, decision in a criminal case, they may sors Joanna Shepherd and Michael S. Kang, Skewed Justice: well vote against the criminal defendant, and, in so doing, Citizens United, Television Advertising, and State Supreme negate his or her right to a fair trial, fair sentence or fair appeal. Court Justices’ Decisions in Criminal Cases1 describes further And, that hurts us all; any one of us may wind up in court. empirical research on the corrosive impact of CU on expendi- Every person who appears in a court of justice, deserves tures in judicial elections and judicial decision making. Not justice — whether an individual or a business in a civil case surprisingly, the pernicious effects of money in politics has or a person who killed an innocent pedestrian while driving spread from judicial decision-making in civil cases to criminal intoxicated. Justice is denied when courts and judges fear the cases as well — one more turn of the screw. consequences of basing their decisions only on the facts and law Skewed Justice reaches two principal conclusions: First, the and ruling in a fair, impartial and independent manner. more TV ads aired during state supreme court judicial elections Interestingly, the federal Constitution does not textually in a state, the less likely justices are to vote in favor of criminal guarantee a single, solitary right to any entity except to natural defendants. Second, justices in states whose bans on corporate human beings. Not one. Every constitutional right which non- and union spending on elections were struck down by CU were human entities presently enjoy—every one of those—has been less likely to vote in favor of criminal defendants than they were created from whole cloth by the Supreme Court of the United before the decision. The results are statistically significant across States. That includes the right of free speech and unlimited different specifications and with different control variables. political speech. The tactic the dark-money spenders use is to cherry-pick the But that is today’s reality. And because of it, dark money disfavored judicial candidate’s decisions by selecting one or two perverts and skews the system against criminally accused and criminal cases with which to charge the candidate as being “soft convicted persons. Not that the 1 percent of the 1 percent that on crime” — for example, “Justice Jones sides with child mo- now fund American politics care, of course. They’re happy to lester.” We have all seen and heard these “Willie Horton” ads. turn the screw down another notch and watch the blood flow. Even though the Constitution and law required Justice Those fundamental constitutional rights guaranteed to We the Jones to vote the way she did, truth is not the objective of the People — we human beings — just don’t fit in with their play ad; rather, it is to inflame a gullible public and to prejudice the books. But, no problem. candidate. As long as the Supreme Court keeps creating constitutional Economic and political priorities do not have a whole lot rights out of thin air just for U.S.A. Inc., the big spenders have to do with criminal justice policy, but the dark money crowd nothing to worry about. After all, those are the rights that understands that “soft on crime” attack ads are frequently the count.

1 www.skewedjustice.org James C. Nelson is a retired Montana Supreme Court justice.

Page 28 December-January 2014-2015 Job Postings and Classified Advertisements

CLASSIFIEDS Contact | Joe Menden at [email protected] or call him at 406-447-2200. ATTORNEYS www.engagingvoices.org. CITY ATTORNEY: The City of Livingston is recruiting for a ASSOCIATE ATTORNEY: Silverman Law Office, PLLC is City Attorney. Required: Juris Doctor degree from accred- a rapidly growing firm focusing in the legal areas of tax/ ited law school, license to practice law in Montana and be a transactional/business/real estate/estate planning/Liquor member in good standing of the Montana Bar Association. and Gaming Law. We are seeking an attorney with 3+ years Preferred: 4 years’ experience in civil, criminal and/or labor experience, that can handle a fast-paced work environment law. Salary: $65,000 - $80,000 DOE. Position open until while providing first rate customer service. Applicant must filled. Send resume and letter of interest clearly stating your have excellent communication and people skills, as well as a reasons for choosing a law career in municipal government desire to be a team player. Applicant is required to be admit- to: Lisa L Lowy, MHA, Administrative Services Director, City ted in Montana. Starting salary D.O.E. Please send your cover of Livingston, 229 River Rd., Livingston, MT 59047; or llowy@ letter, references, resume and writing sample to sandy@ livingstonmontana.org mttaxlaw.com. COMMERCIAL/BUSINESS ATTORNEY: Moulton Bellingham CHIEF DEPUTY COUNTY ATTORNEY: The Yellowstone PC seeks an attorney with 3 years or more experience in County Attorney’s Office is accepting applications for Chief commercial and business law. Background in accounting, tax Deputy of the Felony Division. Starting salary is $48.06 / hour law, commercial transactions and/or commercial litigation + longevity and county benefits. Works at the direction of preferred. LLM Degree in taxation preferred, but not re- the County Attorney and in conjunction with the Deputy quired. Please submit cover letter, resume and references to Chief to supervise attorneys and coordinate support staff in John Jones, Moulton Bellingham PC, P. O. Box 2559, Billings, all divisions with a focus in the Felony Division. Minimum MT 59103 or [email protected]. Requirements: Juris Doctorate; Member of the Montana ERISA ATTORNEY: The State Bar of Montana Group Benefits State Bar; and Minimum 10 years’ experience practicing law, Trust is seeking a qualified ERISA attorney/firm to assist in criminal litigation, and/or government law in Montana. TO administering an employee benefit plan to assure the Trust APPLY Submit Résumé, Names and phone numbers of three is meeting standards of trustee and fiduciary responsibility 3 professional/employment references, Names and cause and related requirements of ERISA. Fiduciaries to benefit numbers of three district court level cases worked as primary plans must safeguard plan investments, act prudently, avoid litigator, and Letter of Interest by 5 p.m., on Dec. 9, 2014, by conflicts of interest, prevent myriad types of “prohibited Mail to Scott Twito, Yellowstone County Attorney, PO Box transactions” defined by ERISA, make truthful and accu- 35025, Billings, Montana, 59107 OR email to: Scott Twito and rate disclosures to plan participants and be aware of their Amy Tolzien at [email protected]. Applicants responsibilities as “co-fiduciaries” to prevent or remedy who require special accommodation due to disability should breaches of responsibility by others. Fiduciary responsibili- contact Linnea Forseth at 406- 256-2870. ties and ERISA-prohibited transaction issues can arise in plan CIVIL SOCIAL JUSTICE ATTORNEY: The Idaho Coalition investment decisions, benefit claim determinations, service Against Sexual & Domestic Violence is hiring a full-time at- provider hiring, contract negotiations and a wide variety of torney to represent the civil legal needs of individuals age other contexts. Send applications to: Leavitt Great West, c/o 11 to 24 who have been victims of sexual assault and to Mary Kay Puckett, 3390 Colton St., Suite A, Helena, MT 59602. actively engage in state and national policy work on gender PROSECUTOR: The City of Bozeman seeks an attorney to violence and related social justice issues such as economic join the City’s criminal prosecution services team. F/T career justice, immigration reform, and reproductive justice. The position w/excellent benefits. Criminal law experienced Idaho Coalition thrives as a multi-cultural organization for preferred. Salary: $63,013 – $69,245 per year as earned DOQ. the benefit of our team, work and movement to end gen- PREFERRED APPLICATION DEADLINE: 5 p.m Monday, Dec. 15, der violence. The Idaho Coalition is an Equal Opportunity 2014. Position open until filled. EOE/ADA/Vet Pref. See the Employer and strongly encourages applicants from racially full announcement and application instructions at or ethnically diverse communities, LGBTQ communities, www.bozeman.net/jobs. and individuals with disabilities to apply. Candidates need to have a law degree with a license to practice law in Idaho or commitment to take the Idaho Bar. Position is located in Boise, Idaho with a highly competitive salary and gener- ous benefits including flexible hours and relocation and Bar More classifieds on page 30 Exam costs if applicable. A copy of the position posting is attached. To find out more about the Idaho Coalition, go to www.montanabar.org Page 29 review. For more information, visit www.meguirelaw.com; More classifieds on page 29 e-mail [email protected]; or call 406-442-8317.

OFFICE SPACE/SHARE PUBLIC FINANCE/CORPORATE ASSOCIATE: Dorsey & Whitney LLP is seeking a junior-level associate attorney to join its Missoula office. This associate will have the opportu- BOZEMAN: Walk to Law & Justice center from law office with nity to work on both public finance and corporate matters. five exec. offices, two small private offices, conf. room, kitch- For more information and to apply, visit www.dorsey.com/ en, two baths, 2nd fl. stor. space w/shower, new paint and careers/attorneys/openings. Dorsey & Whitney LLP is an carpet, 2900 sq. ft., ample parking. Contact Mike McKenna: Equal Opportunity Employer. [email protected] or call 406-587-0792. BOZEMAN: Professional office space available for rent OFFICE STAFF shared with other well established attorneys in great location with quick access to the courts, downtown, 19th LEGAL ASSISTANT: Civil/Criminal Litigation. Send re- Avenue, and university. Ready to occupy with potential refer- sume/references to: Datsopoulos, MacDonald & Lind, P.C. ral opportunities. Office amenities include: copy machine, Attn: Office Admin 201 W. Main, Suite 201, Missoula, MT postage meter, two conference rooms, kitchen and recep- 59802 [email protected] ALL INQUIRIES STRICTLY tion area with lobby coverage. Contact: Charlotte char@ CONFIDENTIAL dmwlawmt.com or 406-582-0027. LEGAL SECRETARY/ASSISTANT: Now searching for a quali- STEVENSVILLE: Professional office building downtown on fied, experienced Legal Secretary/Legal Assistant for an Main Street available for lease starting October 1. Detached active Solo Practitioner Civil and Criminal Litigation practice. 1 story building with 10-car parking lot. Approx. 2,800 sq. ft. Requirements: 3 plus years’ experience ; solid understand- leasable space includes full first floor and basement. Ready ing of the litigation process in State and Federal Court. to occupy modern offices, conference room and reception/ Compensation/Benefits: Competitive, DOE. Contact: 406- waiting room. Central heat, a/c, lovely landscaping. Perfect 690-3535 or [email protected] for small firm or growing solo practitioner. Contact [email protected] or call 917-282-9023 ATTORNEY SUPPORT/RESEARCH/WRITING MEDIATION ENHANCE YOUR PRACTICE with help from an AV-rated attorney with 33 years of broad-based experience. I can MEDIATION SERVICES: Effective Jan. 1, 2015, Stuart Kellner research, write and/or edit your trial or appellate briefs, will provide mediation services under the name Kellner analyze legal issues or otherwise assist with litigation. Please Mediations. He plans to operate primarily electronically visit my new website at www.denevilegal.com to learn more. regarding scheduling, engagement letters, receipt of media- [email protected], 406-541-0416. tion memos and billing at [email protected]. Any necessary mailings may be sent to P.O.Box 1166, Helena, RESEARCH, WRITING, SUPPORT: Experienced attorneys MT 59624. His business cell phone is 406-431-1027. at Strickland & Baldwin, PLLP, offer legal research, writing, and support. We have over 25 years of combined experience AVAILABLE FOR MEDIATIONS AND ARBITRATIONS: As representing both plaintiffs and defendants, and we use former executive vice president and chief counsel of ninth that experience to assist you. Find the help you need, read largest private employer in the U.S. and with over 45 years practice tips, obtain CLE credit, and more at www.mylegal- legal experience, my practice focuses on mediation and arbi- writing.com. tration. Available as a neutral resource for complex commer- cial, class-action, ERISA and governmental agency disputes. COMPLICATED CASE? I can help you sort through issues, Detail of experience, professional associations and cases design a strategy, and write excellent briefs, at either the trial provided on request. Francis J. (Hank) Raucci, 406-442-8560 or appellate level. 17+ years experience in state and federal or www.gsjw.com. courts, including 5 years teaching at UM Law School and 1 year clerking for Hon. D.W. Molloy. Let me help you help CONSULTANTS & EXPERTS your clients. Beth Brennan, Brennan Law & Mediation, (406) 240-0145, [email protected]. FORENSIC DOCUMENT EXAMINER: Trained by the U.S. Secret BUSY PRACTICE? I can help. Former MSC law clerk and UM Service and U.S. Postal Inspection Crime Lab. Retired from Law honors graduate available for all types of contract work, the Eugene, Ore., P.D. Qualified in state and federal courts. including legal/factual research, brief writing, court/depo ap- Certified by the American Board of forensic Document pearances, pre/post trial jury investigations, and document Examiners. Full-service laboratory for handwriting, ink and

Page 30 December-January 2014-2015 paper comparisons. Contact Jim Green, Eugene, Ore.; 888- INVESTIGATORS 485-0832. Web site at www.documentexaminer.info. COMPUTER FORENSICS, DATA RECOVERY, E-DISCOVERY: PRIVATE INVESTIGATOR: Accurate Private Investigator for Retrieval and examination of computer and electronically civil or criminal cases. Licensed in Montana for over 30 stored evidence by an internationally recognized com- years. Zack Belcher, 541 Avenue C, Billings, Montana, 59102. puter forensics practitioner. Certified by the International Phone:1-406-248-2652. Association of Computer Investigative Specialists (IACIS) as INVESTIGATIONS & IMMIGRATION CONSULTING: 37 years a Certified Forensic Computer Examiner. More than 15 years investigative experience with the U.S. Immigration Service, of experience. Qualified as an expert in Montana and United INTERPOL, and as a privvate investigator. President of the States District Courts. Practice limited to civil and administra- Montana P.I. Association. Criminal fraud, background, loss tive matters. Preliminary review, general advice, and techni- prevention, domestic, worker’s compensation, discrimina- cal questions are complimentary. Jimmy Weg, CFCE, Weg tion/sexual harassment, asset location, real estate, surveil- Computer Forensics LLC, 512 S. Roberts, Helena MT 59601; lance, record searches, and immigration consulting. Donald 406-449-0565 (evenings); [email protected]; www. M. Whitney, Orion International Corp., P.O. Box 9658, Helena wegcomputerforensics.com. MT 59604. 406-458-8796 / 7. BANKING EXPERT: 34 years banking experience. Expert bank- ing services including documentation review, workout nego- EVICTIONS tiation assistance, settlement assistance, credit restructure, expert witness, preparation and/or evaluation of borrowers’ EVICTIONS LAWYER: We do hundreds of evictions statewide. and lenders’ positions. Expert testimony provided for deposi- Send your landlord clients to us. We’ll respect your “owner- tions and trials. Attorney references provided upon request. ship” of their other business. Call for prices. Hess-Homeier Michael F. Richards, Bozeman MT 406-581-8797; mike@ Law Firm, 406-549-9611, [email protected]. See mrichardsconsulting.com. website at www.montanaevictions.com.

Modest Means Would you like to boost your income while serving low- and moderate-income Montanans? We invite you to participate in the Modest Means program {which the State Bar sponsors}. If you aren’t familiar with Modest Means, it’s a reduced-fee civil representation program. When Montana Legal Services is unable to serve a client due to a conflict of interest, a lack of available assistance, or if client income is slightly above Montana Legal Services Association guidelines, they refer that person to the State Bar. We will then refer them to attorneys like you.

What are the benefits of joining Modest Means? While you are not required to accept a particular case, there are certainly benefits! You are covered by the Montana Legal Services malpractice insurance, will receive recognition in the Montana Lawyer and, when you spend 50 hours on Modest Means and / or Pro Bono work, you will receive a free CLE certificate entitling you to attend any State Bar sponsored CLE. State Bar Bookstore Law Manuals are available to you at a discount and attorney mentors can be provided. If you’re unfamiliar with a particular type of case, Modest Means can provide you with an experienced attorney mentor to help you expand your knowledge.

Questions? Please email: Kathie Lynch at [email protected]. You can also call us at 442-7660. www.montanabar.org Page 31 Montana State Bar of LawyerMontana State Bar of Montana P.O. Box 577 Helena MT 59624

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